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lARVARD LAW LIBRARY 



■.-.■■^ lY 



OP CASES 



ARGUED AND DETERMINED 



IN THE 



SUPREME COURT OF TENNESSEE 



FOR THK 



EASTERN DIYISIOX, 

SEPTEMBER TEKMS, 1891 AND l«i)2: 



For THK 



MIDDLE DIY1SI0^^ 

DECEMBER TEtCM, ISDl ; 



AND FOB THK 



WESTERN DIVISION, 

APRIL TERM, 139'2. 



GEORGE W. PICKLK. 

A T T O R N E y - G B: N K R A L AND REPORTER 



VOLUME VII. 



NASHVILLE, TENX.: 
Marshall <fe Bruce, SrATroNEHS and Printers. 

1892. 



COPYRIGHT 



I 



Judges. OF the Supreme Court 

OF TENNESSEE. 



STATE AT LARCIE. 



PETEK TURNEY, Ch. J., 
WALLER C. CALDWELL. 



RASTERS DIVISION. 

DAVID L. SXODGRA^SS. 



MIDDLE DIVISION. 

HORACE II. LrUTON 



WESTERN DIVISION. 

BEN J. J. LEA. 



ATTORNEY-GENERAL. 

GEORGE W. TICKLE, 

Knoxville^ Tenn. 



Clerks of the Supreme Court 

OF TENNESSEE. 



D. D. ANDERSON Knoxville. 

A. V. GOODPASTURE Nashville. 

J. W. BUFORD Jackson. 



Chancellors 

OF TENNESSEE. 



John P. Smith, 1st Div 

Henry R. Gibson, 2d Div 
Thos. M. McCoknell, 3d Div 
W. S. Bkarden,^ 4tli Div 
B. M. Webb, ' oth Div 
Andrew Allison, 6th Div 
A. J. Abernathy, 7th Div 
George E. Seay, 8th Div 

Albert G. Hawkins, 9th Div 
II. J. Livings ION, lOtli Div 
W. 1). Beard, 11th Div 

(IV) 



8 
S 

s 
s 

s 

8 
8 
8 
8 

8 
8 



on Elizabethton. 

on Knoxville. 

on . . : Chattanooga. 

on Shelby ville. 

on Smithville. 

on Nashville. 

on Pulaski. 

on Gallatin. 

on Huntingdon. 

on Brownsville. 

on Memphis. 



Circuit Judges 

OF TENNESSEE. 



A. J. Brown, Idt 

W. R. Hicks, . 2d 

S. A. Rogers, Sd 

John A. Moon, '4th 

W. M. Hammock, 5th 

M. D. Smallman, * 6th 
W. K. McAlister, Jr., 7th 

Robert Cantrell, 8th 

Ed D. Patterson, 9th 

A. H. MUNFORD, 10th 

Levi S. Woods, 11th 

W. H. SWIGGART, 12th 

Tuos. J. FuppiN, 13tli 

L. H. EsTES, 14th 

Arthur Traynor, 17th 

John R. Bond, 18th 

W. L. Grigsby, 19tli 
S. T. Logan, Circuit Court 



Circuit Home. 

Circuit Clinton. 

Circuit LoudoD . 

Ci rcuit Chattanooga. 

Circuit Hartsville. 

Circuit McMinnville. 

Circuit Nashville. 

Ci rcuit Lebano n . 

Ci rcuit Savan nah. 

Circuit Ciarksville. 

Circuit Lexington. 

Circuit Union City. 

Circuit Somerville. 

Circuit Memphis. 

Circuit Cleveland. 

Circu it Bro wnsvil le. 

Circuit Charlotte. 

of Knox Co...Knoxville. 



Criminal Judges 

OF TENNESSEE. 



J. W. Snebd for Knox County Knoxville. 

G. S. Ridley for Davidson County. Nashville. 

J. J. DuBOSE for Shelby County Memphis. 

C. W. Ttler for Montgomery County Ciarksville. 

(V) 



■■MM! 



Probate Judge. 



•J. S. Galloway for Slielby County Memphis. 



Attorneys-General 



FOR TENNESSEE. 



H. T. Campbell, Ist Circuit.. Sneedville. 

John 1*. Rogers, 2d Circuit Maynardville. 

F. D. OwiNGS, 3d Circuit Rockwood. 

Foster V. Brown, 4th Circuit ...Chattanooga. 

Alfred Al(jood, r)th Circuit Cookeville. 

W. V. Whitson, 6th Circuit McMinnville. 

W. B. White, 7th Circuit Franklin. 

Lillard Thompson, 8th Circuit Lebanon. 

J. L. Jones, 9th Circuit Columbia. 

II. C. Carter, 10th Circuit Waverly. 

*D. W. Herring, l!th Circuit Jackson. 

J. W. Lewis, 12th Circuit Paris. 

S. L. CocKROFT, 13th Circuit Dyersburg. 

John L. Smith, 17th Circuit Cleveland. 

W. W. Wade, 18th Circuit Trenton. 

Robert Vaughn, Criminal Court Nashville. 

George B. Peters, Criminal Court Memphis. 

G. L. Pitt, Criminal Court Clarksville. 

T. A. R. Nelson, Criminal Court Knoxville. 

'■"Appointed to fill the vacancy caused by the death of T. C. MlJSE. 

( VI ) 



Cases Reported, 



PAGE. 

Alexander, Hawkins 2/. . . . 359 
Anderson v. Railroad .... 44 
Athens, Ruohs v 20 

B. 

Baldridge, Fisher? 418 

Bank v, Dibrell 301 

Bank 7'. Lumber, etc., Co. . . 12 

Bank, Memphis r/. . . 546, 574 

Bank, Nashville Trust Co. i'. . 336 

Bar hour. Railroad i> 489 

Barker z\ Freeland ri2 

Barnhill, Railroad z' 395 

Board of Publication, Stone 

Co. i> 200 

Boone & Howison 7j. Bush . . 29 

Brown v. Cheatham .... 97 

Brown, Spurlock ?>' 241 

Busby, Nance r 303 

Bush, Boone & Howisou 7'. 29 

C. 

Carrier Cos., Insurance Cos. Z'. 537 
Carrington, Memphis 7-. ... $11 
Catholic Knights ?'. Kuhn . . 214 

Cheatham, Brown 2' 97 

Clay brook, Railroad 7.'. ... 489 
Clifton Hill Land Co., Wat- 
kins z' 683 

Cole M'f 'g Co. z'. Collier ... 525 
Collier, Cole .M'f'g Co. ?•. . . 525 
Collins V. Insurance Co. . . . 432 
Crider, Railroads Z' 489 



I'ACB. 

Crook, Walsh v 388 

Crunk, Insurance Co. i'. . . . 376 

D. 

Davidson Counly, Turnpike 

Co. 7' 291 

Davis 7'. Garrett 147 

Denning r. Todd 422 

Dibrell, Bank v 301 

Dies, Railroad ?• 177 

B. 

Epperson v. Robertson . . . 407 

F. 

Fisher 7'. Baldridge 418 

Foster, Woodall v. . . . . 195 

Franklin 7'. Franklin .... 119 

Freeland, Barker 7' 112 

Q. 

Garrett, Davis 7' 147 

Glasgow 7'. Turner 163 

Glenn Bros., O' Bryan Bros. 7'. 106 

Gouldy, McKeldin 7' 677 

Gurley v. Railroad . . . . 486 

H 

Hawkins <•. Alexander . . . 359 

Hawkins, Stale?' J40 

Hawurih f. Monigomery . 16 

Haywood Cnunty, Nelson 7/. . 596 

Hern don, Vaughn 7'. ... 64 

Mill 7'. Slate 521 

Home Ins. Co., Memphis f. . 55^ 

Howell t: Jones 402 

Hurford 7'. Stale ..... 669 



(vn; 



VIU 



CASES REPORTED. 



va<;e. 



I. 



l>A(iK. 

i6 



Insurance Cos. t*. Carrier Cos. 537 
Insurance Co., C^»llin NT'. . . . 432 
Insurance Co. r-. Crunk ... 376 
Ins. Cos., Memphis r-. 546, 558, 566 
Insurance Co. r*. Norment . . 1 
Insurance C!o. 7*. Trustee*, etc. 135 

Irvine 7". Palmer 463 

• 

J. 

Jackson : . Pool 448 

James, Tenn. M'f "g Co. r-. . . 154 
Jones, Howell r- 402 

K. 

Kelly, Uni'r.-ad ?•. ... 699, 708 

King 7'. Slate 617 

Kuhn, Catholic Knights?'. . . 214 

L. 

Lancaster r'. State . 
Leneave v. .McDowell 
Leonard, Simmons r-. 
Lewi>, Sparta -■. 
Longue «'. Railroad . 
Loch timer r-. Stewart 
Lumber, etc., Co., Hank r-. 

M. 
McDowell, Leneave v. 
McKcldin ;-. (iouKly . 
Meacham r-. .Meacham 
Meacham, Railroad?'. . 
Memphis r-. IJank . . . 
Memphis r*. Carrington 
Memphis?'. Ins. Cos. 546, 558, 566 
Memphis :>. Home Ins. Co. . 558 
Memphis-'. Memphis City Rank 574 
MemphsCity Hank, Memphis r-. 574 
Memphis ?■. PlKvnix Ins. Co. 566 
Mills r-. Terry M'f 'g Co. . . 469 
Montague ?■. Thomason . . , 168 



Montgomery, Haworth -•. . . 
Morton «'. State 437 



• '.  


267 




75 




183 




370 1 




458 ! 


• * • 


385 


r-. . 


12 1 

1 


• • • 


1 


• I • 


677 ; 


• • 


532 


• • 


428 


 546, 


574 , 


 • 


5>« 



336 

596 

I 

5^ 

106 



N. 

Nance r-. Husby 

Nashville Trust Co. v. Bank 
Nelson ?■. Haywood County 
Norment, Insurar ce Co. ?'. . 
Norihinglon, Railroad t. . 

O. 

O'Hiyan Bros. 7-. Glenn Bro.s. 

P. 

Palmer, Jrvine r' 463 

Pearcy r-. Tale 478 

Ph(LMiix Ins. Co., Memphis?'. . 566 

Pitt ?'. Poole 70 

Pitt, Railroad v / 86 

Pitt.sburg, etc., Co. ?. (^)uintrell 693 

Pool, Jackson ?' 448 

Poole. Pitt 7' 70 

Q. 

(^uintrell, Pillsburg,etc., Co. ?'. 693 

R. 

RatTeriy ?'. State . . . 

Railroad, Anderson ?'. . 
Railroad z\ Barbour 

Railroad ?•. Barnhill . 

Railroad ?'. Claybrook . 

Railroads v. Crider . . 

Railroad v. Dies . . 

Railroad, (Uirley ?•. - . 

Railroad ?'. Kelly . . . 
Railroad, Loague ?'. 
Railroad ?-. .Meacham 
Railroad :•. Norihington 
Railroad ?'. Pitt . . 

Railroads ?•. Sadler . . 

Railroad, Smith ?'. . . 



655 

44 

489 

395 

489 
489 

177 
486 

699, 708 

45S 
428 

56 
86 

508 

221 



CASES REPORTED. 



IX 



Railroad, Starncs v. . 
Railroad, State ?'. . 
Railroad 7>. Turner . 
Railroad v. Wallace . 
Railroad 7'. Wood ru ft' 
Ransome ?'. Stale . . 
Richards ?'. State . . 
Roach z'. Woodall 
Robertson, Epperson ?'. 
Ruohs V. Athens . . . 



S. 



Sadler, Railroads 7\ 
Simmons v. Leonard 
Simmons v. Taylor 
Smith - . Railroad 
Sparta v. Lewis 
Spurlock z'. Brown 
Starnes 2'. Railroad 
State 7'. Hawkins . 
State, Hill ?. . . . 
State, Hurford ?'. . 
State, King r. . . 
State, Lancaster f. 
State, Morton z: . 
State, Rafferiy 7'. . 
State 7'. Railroad . 
State, Ransome z'. 
State, Richards <•. 
State, Stevens z'. . 
State, Stout r. . . 



PAGE. 
516 

445 
489 

35 
508 

• 716 

723 
206 

407 

20 



508 

183 

363 
221 

370 
241 
516 
140 
521 
669 
617 
267 

437 

655 

445 
716 

723 
726 

405 



CAGE. 

Stevens ?'. State 726 

Stewart, Locheimer v. ... 385 

Stuart, Whitesides 7> 710 

Stone Co. v, Hoard of Pub. . 200 

Stout V. State 405 

Stralton, VanVleet i\ . . 473 



T. 



478 

«54 

469 

168 
422 

135 
163 
489 



Tale, Pearcy v 

Taylor, Simmons '\ . . . 
Tenn. M'f 'g Co. 7'. James 
Terry M'f'g Co., Mills r-. 
Thoma.son, Montague 7: . 
Todd, Denning 7'. 
Trustees, etc., Ins. Co. 7\ 
Turner, Glasgow v. . . . 
Turner, Railroad z'. . . . 
Turnpike Co. v. Davidson Co. 291 

V. 

VanVleet r-. Stratton .... 473 
Vaughn 7'. Herndon 64 

W. 

Wallace, Railroad ?' 35 

Walsh 7'. Crook 388 

Walkins v. Clifton Hill Land 

Co. 683 

Whitesides 7'. Sluarl .... 710 

Woodall 7: Foi.ler 195 

Woodall, Roach r* 206 

Woodruff", Railroad 7' 508 



Cases Cited. 



A. 



PACE. 



Abbott V. Fogg 

Adams Express Co., Trafl'ord 
.Alexander v. Beadles 
Alexander, Beadles n. 
Algood, Steele ?'. . 
Allen, Downe 7'. . 
Allen, Rose v. . . 
Allison, Si ate z: . 
Anderson, Covington z 
Anderson, State ?'. 
Andrews v. Page 
Andrews 7'. State , 
Apple 7'. Apple . 
Armstrong v. Croft 
Armstrong, Spencer 7- 
Arnold v. Jones . . 
Arlerburn, Jones z: 
August I'. Seeskind 
Ay met t v. Butler . . 



I Heis., 742 


k • 1 




 








415 


8 Lea, 100, 109 . 








. 86, 458 


7 Cold., 128 . . 








. . 183 


9 Bax., 606 














183 


87 Tenn., 163 














. 596 


10 l^ea, 666 . 














97 


I Cold., 24 . . 














183 


3 Yei., 428 . 














. 621 


16 Lea, 310 . 














221 


16 Lea. 321 . 














i3» 


3 Heis., 668 






• « 






97 


2 Sneed, 550 












723 


I Head, 348 














402 


3 l-ea, 191 . 














70 


12 Heis., 707 












70 


9 Lea, 548 . . 






• 






402 


II Hum., 98 






1 


• 




183 


6 Cold., 167 








• I 




407 


8 Lea, 453 . 














• 45 



Baker ?/. Grigsby . . . . 
Baldwin 7-. Buford . . . 
Ballentine v. Mayor 
Bamberger, Tompkins «•. 
Bank z\ Farrington . . 
Bank 7'. McGowan . . . 
Bank z'. Memphis . . . 

Bank, Morgan z' 

Bank 7'. Oldham . . . . 
Bank z: Planing Mill Co. 



B 

7 Heis., 627 
. 4 Yer., 20 
. 15 Lea, 633 
 3 ^-ea, 576 
. 13 I-ea, 333 

6 Lea, 705 
. 6 Bax., 415 
. 13 Lei, 239 
. 6 Lea, 729 
. 86 Tenn., ^52 

(XI) 



30 
119 
491 

147 
223 

546, 575 
546, 575 



376 
140 
223 



XII 



CASES CITED. 



Bank, Rice ?• 7 

Bank v. Slaic ... 9 

Barker v. Wilson 4 

Bar lee v. Thompson 8 

Ba.sselt, Frazier -• i 

Bale, Nichol v. 10 

Baxter, Edminhon :• 4 

Baxleri'. Stale 15 

Beadles 7'. Alexander ' . . 9 

Beadles, Alexander v. ..'.... 7 
Bell V. Steele .... 2 

Berry, Liiierer v 4 

Bibb, Brown v 2 

Bledsoe v. Siokes i 

Bogart 7'. McClung 11 

Bowman, McBee?' 89 

Bowman, While v 10 

Borum, Marks?' i 

Boxley v. McKay 4 

Boyles, Nicely ?• ". . 4 

Brake v. State 4 

Brandon r-. Mason i 

Braswell v. State 3 

Brazelton 7'. Brooks 2 

Brazelton v. Railroad 3 

Brewer v. Huntingdon 86 

Brewer *■. Slate 7 

Bridges?'. Wilson .11 

Bridge water v. (lordon ... 2 

Brill, Johnson 7- 9 

Brill V. State 9 

Brittain, Dodge v 

Brooks, Brazelton 7' 2 

Brooks 7'. Gibson 7 

Brooks, James v 6 

Brown v. Bibb 2 

Brown v. Brown 14 

Brown 7/. Brown 86 



Hum., 41 






. . 


• 


•. 241 


Yer., 490 . . 546, 558, 575, 576 


Heis., 269 223 


Bax., 512 . . 








183 


Overton, 299 


• 


\ 




241 


Yer., 429 . . 








. 206 


Hay., 112 








336 


Lea, 657 








. 267 


Bax., 606 . . 








. 183 


Cold., 128 . 


• 






.183 


Hum., 148 . 


. 






106 


Lea, 193  


• 






350 


Cold., 439 


 • 






. 422 


Bax., 312 . . 


• 






. 458 


Heis., 117 . 


• 






301 


Tenn., 132 . 


• • 






370 


Lea, 55 . . . 


• * 






363 


Bax., 94 . . 








655 


Sneed, 289 . 








70 


Hum., 177 








388 


Bax., 361 










618 


Lea, 628 . . 










422 


Leg. R., 283 










521 


Head, 193 . 










336 


Head, 571 . 










30 


Tenn., 732 








• 


596 


Lea, 682 . . 










44 


Heis., 458 




( 


• 


303 


Sneed, 9 . . 






. . 


121 


Heis., 760 








• 


388 


Hum., 30 








< 


656 


Meigs, 84 










370 


Head, 193 . 








• 


336 


Lea, 271, 274 








407 


\ 677 


Heis., 150 . 






• • 


140 


Cold., 439 . 






. . , 


422 


Lea, 259 . . . 






. . . 


119 


Tenn., 277 . 








« 


80 



CASES CITED. 



xni 







•  


fl » 


432 


. . . 


• » 


• • 


119 


• 


• 




' 


21 


 • 




 • 


« 


370 


• 


 


(_ 


• 


408 
45 


. . 


• 


• 


699 


• 546, 


559, 


574, 


576 


 • • 


(■ 


546, 


574 


. . 


• 


• • 


267 


• • • 






« 


200 



269 



Buck, Montgomer)' 7- 6 Hum., 416 

Buford, Baldwin 7' 4 Ver., 20 . 

Burk It. State 5 Lea, 349 . 

Burt, England v 4 Hum., 399 

Bush, Gold 7'. . . 4 Bax., 579 . 

Butler, Aymett t 8 Lea, 453 . 

Butler V. Railroad 8 Lea, 32 

Butler, State 7' 13 Lea, 406 . 

Butler, State 7> 86 Tenn., 633 

Buxton z\ State 89 Tenn., 216 

Bynum, Iron Co. 7> 3 Sneed, 269 

C. 

Caines 7 . Marley 2 Yer., 582 . 

Cannon t. Phillipx 2 Sneed, 186 

Cantrell, Ewing v Meigs, 364 

Carney, Fields t* 4 Bax., 137 

Carson, Williams 7- 2 Tenn. Ch., 

Carter, Riley r 3 Hum., 232 

Carter 7-. Wolfe i Ileis., 695 

Cartwright 7'. State 12 Lea, 625 . 

Cates T. Rittrell 7 Heis., 609 

Catron v. Cross 3 Heis., 584 

Cauikins v. Gas Co 85 Tenn., 683 

Chaffin, Hough v 4 Sneed, 239 

Chattanooga 2>. Railroad 7 Lea, 576 . 

Cheatham, Hayes 7* 6 Lea, 10 

Cheatham r. Yarhrough . . . . 90 Tenn., 77 

Cherry 7.'. Frost 7 Lea, i . . 

Chester 7/. Green 5 Hum., 34 

Chickasaw Lodge, Heiskell r. . . 87 Tenn., 668 

Christian 7'. Clark 10 Lea, 630 . 

Clark, Christian z' 10 Lea, 630 . 

Clark, Drew v. . . Cooke, 374 

Clark 7'. State 86 Tenn., 512 

Clingan v. Railroad 2 Lea, 726 . 

Cloud 7'. Hamilton n Hum., 105 

Cole,^ Lassiter f 8 Hum., 621 



437 



147 
87 
677 
336 
215 

30 
432 
625 

75 
336 
221 

336 

574 
241 

195 
223 

677 

303 
422 

422 

242 

635 

448 

154 
70 



XIV CASKS CITED. 



t 
/ 



Cole Manufacturing Co. 7'. Falls . . QoTenn., 466 491 

Comfort V. McTcer 7 Lea, 660 ... 12 

Comfort V. Patterson 2 Lea, 670 336 

Corley ?' Corley 2 Cold., 524 147 

Cornick v. Richards I Lea, I 223 

Coitrell?. Woodson 11 Heis., 681 »68 

Covington 7-. Anderson 16 Lea, 310 . . '. . . 221 

Cowan V. Dunn i Lea, 68 407 

Craighead v. Wells 8 Bax., 38 206 

Croft, Armstrong v 8 Hum., 621 70 

Cross, Catron 7' 3 Heis., 584 336 

D. 

Dalton 7'. Wolfe ii Heis., 502 242 

Davis V. Davis 6 Lea, 543 183 

Deaderick «'. Lanipson 11 Heis., 523 303 

Dean 7'. Snelling 2 Heis., 484 388 

Dean v. Vaccarro 2 Head, 489 700 

Defrese 7-. Stale 3 Heis., 53 656 

DeLacy 7*. State ... 8 Bax., 401 437, 655 

Delp, Levisay 7* 9 Bax., 415 291 

Denman, Miller v 8 Yer., 237 24I 

Denton, Gatewood v 3 Head, 381 350 

Dick 7'. Powell 2 Swan', 632 386 

Dinwiddie, Fuqua v 6 Lea, 645 168 

Dodge 7'. Brittain Meigs, 84 370 

Dougherty, Hurt 7 3 Sneed, 418 366 

Dove 7'. State 3 Heis., 370 620 

Downs 7'. Allen 10 Lea, 666 97 

Drew 7', Clark Cooke, 374 . 242 

Drum, Cowan 7/ i Lea, 68 407 

Duke 7'. Hall 9 Bax., 282 206 

Dyer 7-. Stale Meigs, 237 597 

E. 

Earl 7/. Rice 10 Yer., 233 418 

East, Wheaton v 5 Yer., 61 223 

Easiland, McNairy 7' 10 Yer., 314 677 

Eaton, Ptisey v 9 Lea, 504 131 

Edington 7'. Pickle i Sneed, 122 ... - 30 



CASES CITED. XV 



Edminson r. Baxter 4 Hay., 1 12 ' 336 

Edwards, Wynne v 7 Hum., 419 140 

Eller 1^'. Richardson 89Tenn., 576. . . . 165, 193, 195 

Ellis V. Railroad ,8 Bax., 530 574 

Embree 7' Reeves 6 Hum., 381 677 

England 7>. Burt 4 Hum., 399 370 

English, Rielly z' 9 Lea, 19 168 

Ensley, Memphis t* -. . 6 Bax., 553 547, 559 

Erie Dispatch t: Johnson 87 Tenn., 490 700 

Erwin v. Oldham 6 Yer., 186 677 

Evans ?•. Thompson 12 Heis., 536 87 

Ewing 7'. Cantrell Meigs, 364 67 

Express Co. 7: Kaufman 12 Heis., 165 699 

Ezell 7'. Giles County 3 Head 586 448 

F 

Falls, Cole M'f 'g Co. ?- 90 Tenn., 466 491 

Fanning, Hudgins 7.' 4 Bax., 578 168 

Farquarson 7: McDonald 2 Heis., 419 106 

Farringion, Bank 7- 13 Lea, 333 223 

Farringion, Memphis?' 8 Bax., 539 546 

Karris, Mills 7' 12 Heis., 462 112 

Fauver 7: Fleenor  • '3 Lea, 622 402 

Fay 7'. Reager 2 Sneed, 200 119 

Fenner, Tyner 7' 4 Lea, 469 408 

Fields 7'. Carney ... 4 Bax., 137 336 

Fisher 7'. State 10 Lea, 156 57 

Fiizhugh 7'. State 13 Lea, 260 267 

Flatley 7-. Railroad 9 Heis., 230* 458 

Flatt 7'. Stadler i6 Lea, 371 402 

Fleenor, Fauver 7- 13 Lea, 622 402 

Fogg, Abbott 7' I Heis., 742 415 

Fogg 7'. Gibbs 8 Bax., 469 169 

Ford ?'. Ford 7 Hum., 96 183 

F'oster, Railroad 7'. .^ 88 Tenn., 671 140 

Foute 7/. State 15 Lea, 712 656 

Franklin 7'. Franklin 90 Tenn., 44 521 

Franklin County 7'. Railroad 12 Lea, 547 574 

Frazier f. Bas.sett i Overton, 299 241 



XVI 



CASES CITED. 



Frazier ?'. Railway Co 88 Tenn., 138 . . 

Frierson, Steele 7' 85 Tenn., 430, 436 

Frierson T'. Van Huren 7 Yer., 606 . . . 

Frost, Cheiry v 7' Lea, i . . . . 

Fuqua ?'. Dinwiddie 6 Lea, 645 . . 



. . 418 

45. 463 
. . 121 



223 
168 



G. 

Gaines, Johnston ?'..... . . I Cold., 288 

Gaines, Railroad v 3 Tenn. Ch., 

(Jaines, State 7> i Lea, 734 . 

Gaines, Wilson r* 9 Bax., 551 . 

Galbrailh v. Railroad 11 Heis., 169 

Gardner?'. Stanfield 12 Ileis., 150 

Garrett 7*. Rogers i Heis., 320 

Gas Co., Caulkins 7' 85 Tenn., 683 

Gas-light Co. r-. Nashville 8 Lea, 406 . 

Gatewood 7'. Denton 3 Head, 381 

Gibbs. Fogg 7- 8 Bax., 469 . 

Gibson, Brooks 7' 7 Lea, 271 . 

Gibson 7-. Widener 85 Tenn., 16 

Glass 7'. Bennett 89 Tenn., 479 

(iold 7/. Bush 4 Bax., 579 . 

Goodyear, Hill 7' 4 Lea, 233 . 

Gordon, Bridgewater 7- 2 Sneed, 9 . 

Grady, McGhee 7* 12 Lea, 92 

Gray, Tate 7- 4 Sneed, 592 

Green, Chester t 5 Hum., 34 

Greenlee 7'. Railroad 5 Lea, 418 . 



604 



547 



Greenlaw, Jones 7'. ... ... 

Green low 7'. Si ale 

Greenwood t'. Tenn. M'f'g Co. 

Greer 7\ State 

Gregory v. Hasbrook 

Griffin, Ex parte 88 Tenn., 547 

Grigsby, Baker 7' 7 Heis., 627 

Guthrie 7'. Owen 2 Hum., 202 

H. 



6 Cold., 342 
4 Hum., 27 

2 Swan, 130 

3 Bax., 322 . 
I Tenn. Ch., 220 



559. 



Hacker, Roach 7' 2 Lea, 633 

Had ley 7>. Kendrick 10 Lea, 525 



119 

547. 566, 574 
716 

566, 574i 576 

30 
241 

140 

221 

547. 559. 576 

• • 350 
. . 169 

407, 677 

.15, 486, 683 

241 

408 

370 
121 

359 

370 

677 

86, 458 

75 
626 

200 

268 

490 

30 
183 



402 
223 



CASES CITED. XVII 



Hale, Whillock v lo Hum., 65 388 

Hall, Duke 7*. ....'. . .9 Bax., 282 206 ^ 

Hall t'. Railroad Thomp. Cai^., 204 .... 458 

Hamblen County, Railroad 7. . . . * MS 566, 574 

Hamilton, Cloud?' 1 1 Hum., 105 154 

Hamilton v. Zimmerman 5 Sneed, 39 473 

Hannum 7'. State 9oTenn., 647 268 ' 

Hargrove 7'. State 13 Lea, 179 267 

Hasbr6ok, Gregory 7' . i Tenn. Ch., 220 336 

Hayes v. Cheatham 6 Lea, 10 241 

Hayes i: State 15 Lea, 65 437, 655 

Haywood County, Nelson 7*. ... 87 Tenn., 781 598 

Heiskell t. Chickasaw Lodge ... 87 Tenn., 668 303 

Henry 7'. Wilson 9 Lea, 176 .. ^^ 402 

Hernando Ins. Co., Memphis 7'. . . 6 I5ax., 527 .... 546, 559, 576 

Hicks, Railroad v. . . : 9 Bax., 442 566 

Hill 7. Goodyear •4 Lea, 233 370 

Hill, Maxwell 7' 89 Tenn., 588 ........ 183 

Hill ?■. McLean 10 Lea, 115 168 

Hines 7/. State 8 Hum., 601 •. 618 

Hodge, Tulley 7- 3 Hum., 74 ... 75 

Holcomb 7'. State 8 Lea, 417 ,..•..... 617 \ 

Holder 7'. Railroad 11 Lea, 176 . 508 

Holland 7/. Railroad 16 Lea, 414 395 

Holloway, Key 7' 7 Bax., 579 . . 168 

Holman, Mason 7- 10 Lea, 315 ., 147 

Hopkins 7'. Webb 9 Hum., 522 677 

Hotel Co., McKinney 7/ 12 Heis., 116 576 

Hough V. Chaftin 4 Sneed, 239 336 

House 7'. Swanson .' .... 7 Hei."^., 32 407 

Hubbard, Smith 7' 85 Tenn., 306 163, 169 

Hud^ins 7'. Fanning 4 Bax., 578 168 

Hume 7'. Railroad i Cold., 74 . 491 

Huntingdon, Brewer t 86 Tenn., 732 596 

Hurt 7'. Dougherty 3 Sneed, 418 366 

I 

Iron Co. 7'. Bynufn .3 Sneed, 269 200 

In.surance Co. 7. Taxing District . . 4 Lea, 644 491, 511 

« Al— 7P 



XVIII CASES CITfiD. 



J 

Jackson v. Shellon .89 Tenn., 88 402 

Jacobs, Kelton v 5 Bax., 574 168 

James 7'. Brooks 6 Heis., i$o 140 

J. I. Case Co. 7'. Joyce 89 Tenn., 337 532 

Johnson v. Britt 9 Heis., 760 ......... 388 

Johnson, Erie Dispatch r' 87 Tenn., 490 700 

Johnson 7'. Gaines i Cold., 288 119 

Johns^^n 7'. Stale 11 Lea, 47 , . 617 

Johnson, Vanleer 7-. ....... 8 Yer., 163 418 

Jones, Arnold 7- 9 I^ea, 548 402 

Jones 7'. Arterburn 11 Hum., 98 . .- 183 

Jones 7'. Greenlaw 6 Cold., 342 75 

Jones, Thompson 7- i Head, 576 147 

Jones 7'. Waddell 12 Heis., 338 168 

Jourolmon 7-. Massengill 86 Tenn., 119 677 

Joyce, J. T. Case Co. t 89 Tenn., 337 532 

Joyner, Leslie 7- 2 Head, 515 163, 473 

K. 

Kalzenherger, Railroad v 16 Lea, 380 181 

Kaufman, Express XTo. 7' 12 Heis., 165 699 

Keith V. Smith i Swan, 92 337 

Kellar, Stale 7' 1 1 Lea, 399 432 

Kelton 7'. Jacobs 5 Bax., 574 168 

Kendrick, Hadley 7- 10 Lea, 525 223 

Key 7'. Holloway 7 Bax., 579 168 

Killebrew ?'. Murphy 3 Heis., 551 119 

Kinsey v, Staunton 6 Bax., 92 683 

Kittrell, Gates 7'. 7 Heis.. 609 75 

L. 

Ladd 7. Riggle 6 Heis., 620 359 

Ladd, Tennessee Lodge 7* 5 Lea, 720 214 

Lament & Co., Railroad z- 9 Heis., 58 700 

Lampson, Deaderick 7' 1 1 Heis., 523 303 

Lancaster Mills 7*. Merchants* Cotton- 
press Co 89 Tenn., 35, 36 699 

Lassiter v. Cole 8 Hum., 621 70 



CASES CITED. XIX 



I^e, Porter v. . ' 88 Tenn., 791 677 

Leslie 7'. Joyner 2 Head, 515 163, 473 

Level ton 7'. Waters Thomp. Cas., 278 388 

Leverlon v. Waters 7 Cold., 20 388 

Levi say 7'. Delp 9 Bax., 415 291 

Lewis V. State 3 Head, 127, 150 268 

Lilly, Railroad 7' 90 Tenn., 563, 565 ... 87, 458 

Link 7'. Slate 1.3 Lea, 701 656 

I^itterer 7'. Berry '. . . 4 Lea, 193 350 

Loague, Vamell v 9 Lea, 158 131 

Logue V. Stanton ; 5 Snced, 98 183 

Luehrman r. Taxing District . . 2 Lea, 425 490 

Luster 7/. Stale 11 Hum., 169 619 

Lynn v. Manufacturing Co 8 Lea, 29 359 

M. 

Machine Co. v, Zachary 2 Tenn. Cli., 478 336 

Madry, Sherill 7' "6 Lea, 231 359 

Mahoney, Railway Co. v. . . . 89 Tenn., 311, 332 . . . .119, 370 

Malatesta, Weigand ?' 6 CoFJ., 366 363 

Manchester Mills, Railroad 7-. . . . 89 Tenn., 36, 37 699 

Mann 7'. Mann 12 Ncis., 246 463 

Mann 7'. State 3 Head, 377 617 

Manufacturing Co., Lynn v. . .8 Lea, 29 359 

Marks 7'. Borum I Bax., 94 655 

Marley, Caines 7' 2 Ver., 582 147 

Marlow, Settle 7' 12 Lea, 474 163 

Marshall, McGan v 7 Hum., 125 223 

Marshall, Turnpike Co. 7' 2 Bax., 123 710 

Martin^ McBrien 7-. ... \ ... . 87 Tenn., 13 l68 

Martin 7. Neblett 86 Tenn., 383 76 

Martin ?•. Ramsey 5 Hum., 350 147 

Mason v, Brandon i Lea, 628 422 

Mason 7-. Holman 10 Lea, 315 147 

Mason v. Spurlock 4 Bax., 563 168 

Masscngill, Jourrtlmun z- 86 Tenn., 119 677 

Maury County, Turnpike Co. 7'. . . 8 liuni., 342 291 

Maxwell 7'. Hill 89 Tenn., 588 183 

Mayes, Satierfie'd7' 11 Hum., 58 121 



XX CA&KS CITKD. 



Mayor, Hallentine t 15 Lea, 633 . . . • 491 

Mayor 7*. McKee 2 Ver., 168 448 

Mayor 7'. Potomac IiiMirauce Co. . . 2 Hax., 296 . 413 

Mnyor 7-. Slieplierd 3 liax,, 373 448 

Memphis, Bank 7' 6 15ax., 415 546, 575 

Memphis 7'. Knsley 6 13ax., 553 547, 559 

Memphis 7'. P'nrrington 8 Hax., 539 546 

Memphi> 7'. Hernando InsuraiM:c Co. 6 liax., 527 546, 559, 576 

Memphis 7'. Water Co 5 U€\^., 495 576 

Memphis Gas Co., Read 7- 9 Ileis., 545 44 

Merchants, etc., Co., Lancaster 

Mills 7' . 89Tenn., 36, 37 699 

Miller :•. Denman 8 Ver., 237 241 

Miller, Williams 7' 2 Lea, 409 75 

Mills .-'. Karris . . 12 Heis., 462 1 12 

Monttjomery r. Buck 6 Hum., 416 432 

Montgomery 7'. Mc(il>ee 7 Hum., 235 677 

Montgomery, Slate ?• 7 Bax., 161 '. . 655 

Moore, Snapj) 7- 2 Overton. 236 376 

Morgan r. Bank 13 Lea, 239 376 

Morley ?'. Power 5 Lea, 691 710 

Morrow, Street Railroad C(j. 7. . . 87 Tenn., 406 .... 547, 559/576 

Mosby, Smith 7- \- 9 Heis., 501 336 

Mo.sehy 7'. WilliamNCJii ...... 5 Heis., 278, 287 12, 336 

Moses 7'. San ford 11 Lea, 731 291 

Mo.sley, Wells 7' 4 Cold., 405 376 

Mumford 7>. Railroad . 2 Lea, 393, 397 1 12, 376 

Murphy, Killebrew 7' 3 Heis., 551 . ..... 119 

• 

Mc. 

McBee 7-. Bowman 89 Tenn., 132 370 

McBrien 7-. Martin 87 Tenn., 13 168 

McCarthy 7-. Slate 89 Tenn., 543 618 

McClung, Bog.iit7' . . II Heis., 117 301 

McConnell, State 7. . . . .3 Lea, 332 596 

McDonald, Fanjuarson <-- 2 Heis., 419 . . ' 106 

McDoLigal 7*. State 5 Bax., 661 437 

McEwen ?'. Troo.st i Sneed, 186 147 

McCJan ?•. Marshall 7 Hum., 125 223 



CASES CITED. 



XXI 



McGhee r. Grady 12 Lea, 92 .^ . 

McGhee, Montgomery v 7 Hum., 235 

McGowan, Bank ?• 6 Lea, 705 . 

McKay, Box ley 7- 4 Sneed, 289 

McKee, Mayor 7/ 2 Yer., 168 . 

McKinneyr. Hotel Co 12 Heis., u6 

McLean, Hill 7* 10 Lea, 115 . 

McMinn t'. Richmond 6 Yer., 9 . . 

McNairy 7'. Eastland ....... 10 Yer., 314 . 

McTeer, Comfort 7- 



• • 359 
. . 677 

546, 575 

 • 70 

• • 448 

• • 576 
. . .168 
. . 206 
. . 677 



7 Lea, 660 12 



N. 

Nailor 7'. Young 7 

Nashville Bridge Co. 7\ Shelby . . 10 

Nashville, Gas-light Co. 7- 8 

Nashville z: Thomas 5 

Neblcll, Martin v 86 

Nelson 7'. Haywood County ... 87 

Newman, Rogers 7- 5 

Nicely 7'. Boyles 4 

Nichol r. Bale 10 

Northington «'. State 14 

Norton v. Whitesides 5 

O. 

Oldham, Bank <• 6 

Oldham, Erwin z* 6 

Owen, Guthrie 7' 2 

P. 

Page, Andrews t 3 

Parczyk, Rocco 7' 9 

Pardue 7'. West i 

Parker, Richardson z' . 2 

Patterson, Comfort 7' 2 

Peacock z: Tompkins 

Peck Z'. State 86 

Perry, Stratton v 2 

Phillips, Cannon ?• 2 

Pickle, Edington :• i 



Lea, 738 407 

Yer., 280 292 

I^ea, 406 547. 559. 576 

Cold., 600 .... 546, 558, 576 

Tenn., 383 76 

Tenn., 781 598 

le-i, 255 683 

Hum., 177 388 

Yer., 429 206 

Lea, 424 620 

Hum., 381 359 



Lea, 729 . 
Yer., 186 . 
Hum., 202 



Heis., 668 
Lea, 336 . 
Lea, 729 . 
Swan, 529 
Lea, 670 . 
Meigs, 317 
Tenn., 259 
Term. Ch., 633 
Sneed, 186 . . 
Sneed, 122 . . 



140 
677 
183 



97 
521 

388 

33(> 
677 

521 

386 

87 
30 



XXII CASES CITED. 



IMcklcr 7'. Kainey . . i 4 Heis., 339 473 

Pinkerton r-. Walker 3 Hay., 220 1 19 

Planing Mill Co., Bank t 86 Tcnn., 252 223 

Poe V. State 10 T^ea, 673 617 

Porter v, Lee 88 Tenn., 791 677 

Porter r. Stale -3 Lea, 496 617 

Posiey7'. Eaton ..,...,... 9 Lea, 504 131 

Potomac Ins. Co., Mayor v 2 Bax., 296 473 

Powell, Dick r 2 Swan, 632 386 

Power, Morley r*. 5 Lea, 691 700 

R. 

Rader r-. State 9 Hum., 646 618 

Kag.sdale v. State 10 Lea, 671 437 

Rainey, Pickfer v 4 Heis., 339 473 

Railroad, Brazelton ?' 3 Head, 571 30 

Railroad, Butler 7- 8 Lea, 32 69^ 

Railroad. Clingan r 2 Lea, 726 448 

Railroad, Chattanooga 7-. .... . 7 Lea, 576 574 

Railroad, KIlis7- 8 Bax., 530 574 

Railroad, Flalley t 9 Heis., 230 458 

Railroad, Franklin County ?'. . . .12 Lea, 547 . 574 

Railroad, Krazier v •. . 88 Tenn., 138 . . 418 

Railroad 7'. Foster 88 Tenn., 671 . 140 

Railroad 7'. Gaines 3 Tenn. Ch., 604 . . 547, 566, 574 

Railroad, Galbraitli ?• II Heis., 169 30 

Railroad, Greenlee v 5 Lea, 418 86, 458 

Railroad, Hall 7^'. . • , Thomp. Cas., 204 458 

Railroad 7'. Hamblen County . . . MS., 566 574 

Railroad 7-. Hicks 9 Bax., 442 566 

Railroad, Holder 7' ii Lea, 176 508 

Railroad, Holland 7- 16 Lea, 414 395 

Railroad, Hume t i Cold., 74 491 

Railroad 7'. Katzenberger .... 16 Lea, 380 181 

Railroad, Lamont & Co. 7' 9 Heis., 58 700 

Railroad 7. Lilly 90 Tenn., 563 87, 458 

Railroad 7'. Mahoney 89 Tenn., 311, 332 .... 119, 370 

Railroad, Manchester Mills 7. . . . 88 Tenn., 653 693 

Railroad, Mumford 7' 2 Lea, 393, 397 112,376 



I. 

r 



Cases citbd. - xxm 



Railroad ?^ Sowell 90 Tenn., 17 516 

Railroad v. State 3 Head, 523 . . \ 445 

Railroad 7. State - . . . 8 Heis., 789 574 

Railroad, State ?• 12 Lea, 538 566 

Railroad z'. Walker 9 Lea, 480 395 

Railroad, Webb 7' 88 Tenn., 119 86 

Railroad?' Wilson 88 Tenn., 316 428 

Railroad 7>. Wilson County .... 89 Tenn., 608 574 

Railroad 2'. Wynn 88 Tenn., 330 516 

Ramsey, Martin v 5 Hum., 350 '. 147 

Read, Trigg 7' '. . 5 Hum., 533 242 

Read r'. Memphis Gas Co 9 Heis., 545 44 

Reagan, Fay 7- 2 Sneed, 200 119 

Reeves, Embree ?•. 6 Hum., 38 677 

Reeves v. Reeves 5 Lea, 644 - . 303 

Rhea 7: Rhea 15 Lea, 527 402 

Rice T/. Bank 7 Hum., 41 241 

Rice, Earl 7'. , . 10 Ver., 233 418 

Rielly 7-. English ........ 9 Lea, 19 168 

Richards, Cornick v 3 Lea, i 223 

Richardson, Eller 7- 89 Tenn., 576 .... 165, 193, 195 

Richardson r. Parker 2 Swan, 529 336, 337 

Richmond, McMillan f 6 Ver., 9 206 

Riggle, Ladd v 6 Heis., 620 ». 359 

Riley 7'. Carter 3 Hum., 232 . 30 

Riley v. State 9 Hum., 646 618 

Rison 7'. Wilkerson 3 Sne^d, 565 215 

Roach 7 . Hacker 2 Lea, 633 402 

Roane 7. Slate n Hum., 492 618 

Rocco 7'. Parczyk 9 Lea, 331 521 

Rogers, Garrett 7' 1 Hei,s., 320 140 

Rogers v. Newman 5 Lea, 255 683 

Rogers, Slate v 6 Bax., 563 621 

Rose 7'. Allen i Cold., 24 183 

S. 

Sanford, Moses f. 11 Lea, 731 291 

Satterfield 7'. Mayes 11 Hum., 58 121 

Seeskind, August v 6 Cold., 167 407 



XXIV CASKS CITED. 



Settle 7'. Marlow 12 Lea, 474 163 

Shelton, Jackson 7'. ...... . S9 Tenn., 88 402 

Shelton, Thurman 7- 10 Ver., 383 422 

Shepherd, Mayor 7' 3 Bax., 373 448 

Shell>y, Nashville Bridge Co. 7-. . . 10 Yer., 280 292 

Sherrill 7'. .Madry 6 Lea, 231 359 

Shrimpf 7'. Tenn. M'f'g Co 86 Tenn., 219 155 

Singleton 7*. Wilson 85 Tenn., 347 163 

Smith 7'. Hubbard 85 Tenn., 306 163, 169 

Smith 7'. Mosby 9 Heis., 501 336 

Smith 7f. State . ^ 2 Lea, 614 726 

Smith, Womack 7' 11 Hum., 478 I2i 

Snapp 7'. Moore 2 Overton, 236 376 

Snelling, Dean 7-. . .^ 2 Heis., 484 ...'..... 388 

Sowell, Railroad 7' 90 Tenn., 17 516 

Sparks 7'. White 7 Hum., 87 242 

Spence, Ex parte : . 6 Lea, 391 408 

Spence v. Armstrong 12 Heis., 707 70 

Spurlock, Mason 7*. 4 Bax., 563 168 

Siadler, Flatt v 16 Lea, 371 402 

Sianfield, Gardner 7- 12 Heis., 150 241 

Stanton, I^ogue v 5 Sneed, 98 183 

Staples 7'. Stale 89 Tenn., 231 620 

Slate f. Algood 87 Tenn.,, 163 596 

State 7'. Allison 3 Yer., 428 621 

State 7' Anderson 16 Lea, 321 131 

Slate, Andrews I' 2 Sneed, 550 723- 

Slate, Bank v 9 Yer., 490 . . 546, 558-9, 575-6 

Slate, Baxter 7' 15 Lea, 657 267 

State, Brake 7' 4 Bax., 361 618, 619 

Stale, Braswell 7' 3 Leg. R., 283 521 

Slate, Brewer 7- 7 Lea, 682 44 

Stale, Brill v 9 Hum., 30 656 

State, Burk 7- 5 Lea, 349 21 

Stale 7'. Butler 13 Lea, 406 .. . 546, 559, 574, 576 

State 7'. Butler 86 Tenn., 633 546, 574 

State, BuKton 7^ 89 Tenn., 216 267 

Slate, Cart Wright v 12 Le.a, 625 625, 626 



CASES CITED. 



XXV 



State, Clark v 86 

State, Defrese v 3 

State, DeLacy v. , , . i 8 

State, Dove v 3 

State, Dyer v 

State, Fisher v 10 

State, Fiizhugh v 13 

State, Fonte v 15 

State 7\ Gaines i 

State, Green low v 4 

State, Greer v 3 

State, Hannum v 90 

State, Hargrove v 13 

State, Hayes z/ * .... 15 

State, Hines v 8 

State, Holcomb v 8 

State, Johnson z' 11 

State V, Keller 11 

Slate, Lewis v 3 

State, Links v 13 

State, Luster v 11 

State, Mann v 3 

State, McCarthy v 89 

State V. McConnell 3 

State, McDougalv 5 

State, Montgomery v 7 

State, Nicholson v 9 

State, Northington v 14 

State, Peck v 86 

Slate, Poe v 10 

State, Porter v 3 

State, Rader v 5 

State, Ragsdale v 10 

State, Railroad v 3 

State, Railroad v 8 

State IK Railroad 12 

State, Riley v 9 

State V. Rogers 6 

A2 — 7P 



Tenn., 511, 512 ... . 437, 655 

Heis., 53 656 

Bax., 401, 402 .... 437, 655 

Heis., 370 620 

Meigs, 237 597 

Lea, 156 57 

Lea, 260 267 

Lea, 712 716 

Lea, 734 716 

Hum., 27 626 

Bax., 322 268 

Tenn., 647 268 

Lea, 179 267 

Lea, 65, 66 437, 655 

Hum., 601 618 

Lea, 417 617 

Lea, 47 617 

Lea, 399 432 

Head, 127, 150 268 

Lea, 701 656 

Hum., 169 619 

Head, 377 617 

Tenn., 543 618 

Lea, 332 596 

Bax., 661 437 

Bax., 161 655 

Bax., 258 655 

Lea, 424 620 

Tenn., 259 521 

Lea, 673 617 

Lea, 496 617 

Lea, 610 617 

Lea, 671 ... 437 

Head, 523 445 

Heis., 789 574 

Lea, 538 566 

Hum., 646 618 

Bax., 563 621 



XXVI CASES CITED. 



State, Rowes' ii Hum., 492 618 

State, Smith v 2 Lea, 614 726 

State, Staples v 89 Tenn., 231 620 

State, Stewart v i Bax., 178 620 

State, Stone v 4 Hum., 27 618 

State, Tarvers v 90 Tenn., 499 437 

State, Taylor v 6 Lea, 235 267 

State, Turner v 89 Tenn., 548 618 

State, Wheeler v 9 Heis., 393 169 

State, Williams 2/ 6 Lea, 549 596 

State V, Williams . 5 Bax., 655 726 

State, Witt 7' 5 Cold., 11 723 

Staub V. Williams \ Lea, 36, 124 683 

Staunton, Kinsey v 6 Bax., 92 683 

Steele, Bell v 2 Hum., 148 106 

Steele v. Frierson 85 Tenn., 430, 436 .... 45, 463 

Stewart v. State i Bax., 178 620 

Stokes, Bledsoe t- I Bax., 312 458 

Stone V. State 4 Hum., 27 618 

Stratton v. Perry 2 Tenn. Ch., 633 386 

Street Railroad Co. v. Morrow ... 87 Tenn., 406 .... 547, 559, 576 

Swanson, Ho^ise v 7 Heis., 32 • . . 407 

Swiney v. Swiney ....:... 14 Lea, 316 152 

T. 

Tarvers v. State 90 Tenn., 499 437 

Tate V. Gray 4 Sneed, 592 370 

Taylor, Turleyz' 3 Lea, 171 677 

Taylor v. State 6 Lea, 235 267 

Taxing District, Insurance Co. ZA. . 4 Lea, 644 491, 511 

Taxing District, Luehrraan z-. . . 2 Lea, 425 490 

Tennessee Lodge v, Ladd 5 Lea, 720 ... 214 

Tennessee M'f'g Co., Greenwood v, 2 Swan, 130 200 

Tennessee M'f'g Co., Shrimpf 7'. . . 86 Tenn., 219 155 

Thomas, Nashville v 5 Cold., 600 .... 546, 559, 576 

Thompson, Bartee v 8 Bax., 512 183 

Thompson, Evans z^ 12 Heis., 536 87 

Thompson v, Jones i Head, 576 147 

Thurman v. Shelton 10 Yen, 383 422 



CASKS CITED. 



XXVII 



Tompkins v, Bamberger 3 

Tompkins, Peacock v 

TrafTord v. Adams Express Co. . . 8 

Trafford, Weil v 3 

Trafford v» Wilkinson 3 

Towles V. Towles i 

Trigg V. Read 5 

Troost, McEwen v i 

Trott V. West 

Tulley V. Hodge 3 

Turley v, Taylor 3 

Turner z*. State 89 

Turnpike Co. v, Maury County . . 5 

Turnpike Co. i'. Marshall 2 

Tyner 7'. Fenner 4 

V. 



Lea, 576 147 

Meigs, 317 407, 677 

Lea, 100, 109 86, 458 

Tenn. Ch., 108 215 

Tenn. Ch., 451 422 

Head, 601 463 

Hum., 533 242 

Sseed, 186 147 

Meigs, 168 . - 372 

Hum., 74 75 

Lea, 171 677 

Tenn., 548 618 

Hum., 342 * 291 

Bax., 123 . 710 

Lea, 469 408 



Vaccaro, Dean v 2 Head, 489 

Van Buren, Frierson v 7 Yer., 606 . 

Vanleer z/. Johnson ♦. . 8 Yer., 163 . 

Varnell v. Loague 9 I^ea, 158 . 

Vincent 2/. Vincent I Heis., 333 



706 

121 

418 
388 



W. 

Waddell, Jones v 12 

Walker, Pinkerton r' 3 

Walker, Railroad v 9 

Warren v. Williamson 8 

Water Co., Memphis v 5 

Waters, Leverton v 

Waters, Leverton v ,7 

Webb, Hopkins v 9 

Webb V. Railroad 88 

Weigand v. Malatesta 6 

Weil z'. Trafford 3 

Wells, Craighead v 8 

Wells V. Mosely 4 

Wells, Stevens v 4 

Wheaton 7/, East 5 



Heis., 338 168 

Hay., 220 119 

Lea, 480 395 

Bax., 431 242 

Heis., 495 576 

Thomp. Cas., 278 388 

Cold., 20 388 

Hum., 522 677 

Tenn., 119 86 

Cold., 366 363 

Tenn. Ch., 108 215 

Bax., 1% 206 

Cold., 405 376 

Sneed, 389 200 

Yer., 61 223 



XXVIII 



GASES CITED. 



• • • 



Wheeler z\ State . . . 
Whillock V, Hale . . 
White I: Bowman . . 
White, Sparks v. 

Whitesides, Norton Z' 

Widener, Gibson ?' 

Wilkerson, Rison v 

Wilkinson, Trafford 7' 

Williams v, Carson 

Williams 7'. Miller 

WMlliams, State v 

Williams 7'. State 

Williams, Staub r 

Williamson, Mt)seby r 

Williamson, Warren v. . . , . 

. WiUon, Barker ?> 

Wilson, Bridges v 

Wilson z: Gaines 

' Wilson, Henry v 

Wilson, Railroad t' 

Wilson, Singleton v 

Wilson County, Railroad v. . . 

Witt V. State 

Wolfe, Carter 7' 

Wolfe, Dal ton v 

Womack 7'. Smith 

Woodson, Cottrell z; 

Wynne 7'. Edwards 

Wynn, Railroad 7' 



• • • • 



9 Heis., 393 ... 


. . 169 


lo Hum., 65 . . . 


388 


10 Lea, 55 .... 


363 


7 Hum., 87 . . . 


242 


5 Hum., 381 . . . 


359 


85 Tenn., 16 . . . 


. 415. 486, 683 


3 Sneed, 565 . . . 


. . 215 


3 Tenn. Ch., 451 . 


422 


2 Tenn. Ch., 269 . 


215 


2 Lea, 409 .... 


75 


5 Bax., 655 ... 


726 


6 Lea, 549 .... 


596 


I Lea, 36, 124 . . 


683 


5 Heis., 278, 287 . 


. ... 12, 336 


8 Bax., 431 .... 


242 


4 Heis., 269 . . . 


. . 223 


II Heis., 458 . . . 


303 


9 Bax., 551 . . 54' 


h 559, 566, S74 


9 Lea, 176 . . . . 


402 


88 tenn.. 316 . . 


428 


85 Tenn., 347 •• • 


163 


89 Tenn., 608 .. . 


574 


5 Cold., II ... . 


. • • . . 723 


I Heis., 695 . . . 


432 


II Heis., 502 . . 


242 


II Hum., 478 . . . 


.121 


II Heis., 681 . . . 


168 


7 Hum., 419 . . . 


. . . 140 


88 Tenn., 330 .. . 


516 



Y. 

Yarbrough, Cheatham v 90 Tenn., 77 195 

Young, Nailor v 7 Lea, 738 407 

Younger v. Younger 90 Tenn., 25 486, 683 



Z. 



Zachary, Machine Co. v. . . 
Zimmerman, Hamilton z: . . 



2 Tenn. Ch., 478 336 

5 Sneed, 39 473 



CASES 



ARGUED AND DETERMINED 



IN THE 



SUPREME COURT OF TENNESSEE, 



FOR THE 



EASTERN DIVISION. 



KNOXVILLE, SEPTEMBER TERM, 1891. 



Insurance Company v. Norment. 
{Knozcille. November 17, 1891.) 

1. Supreme Court. IVill not disturb verdict^ zu/ien. 

Supreme Court will not disturb verdict rendered upon conflicting evi- 
dence under a correct charge if there is material evidence to support it. 

2. Life Insuranxe. Notice of injury or death. \Vah>er, 

The condition in a life and accident policy requiring that "immediate 
written notice of an accidental injury or death " shall be given to 
the insurer at his hom6 office is treated as either waived or sufiiciently 
complied with in a suit upon the policy for assured's death, where 
the assured, having sustained his injury about the first of April, gave 
verbal notice thereof to the local agent some time in May following, 






KNOXVILLE : 



Insurance Company v. Norment. 



which was promptly communicated to the home office by the agent 
through a letter, and thereafter the insurer, through his agents and 
physicians, made thorough examination of the case both before and 
after assured's death. 

3. Same. Proof of death or disability. Waiver, 

The condition in a life and accident policy requiring "affirmative and 
positive proof of death, or loss of limb or sight, or of duration of 
disability" to be furnished to the insurer "within six months from 
date of death, or within thirty days froni date of the termination of 
the period of total disability" is waived, where the insurer, having 
received due notice of the assured's injury and of his subsequent death 
or waived the same, proceeded to investigate the case thoroughly 
both before and after assured's death, and thereafter declined to in- 
vestigate the claim or to furnish instructions and blank forms for 
proof of death upon the request of the beneficiary in the policy, 
made in due time, unless he would sign, as a condition precedent, an 
agreement whereby his claim might have been lost or prejudiced. 

4. Same. Ldmitaiion as to time of bringing suit. 

The condition in a life and accident policy forbidding suit thereon 
within three months next after receipt of proofs of death or disability 
at the home office, cannot be invoked by the insurer to defeat suit 
brought within that time, where he has waived such proofs, and 
absojutely refused, upon untenable grounds, to consider or settle 
assured's claim. ,. 



FROM HAMILTON. 



Appeal iu error from Circuit Court of Ilaniiltou 
County. John A. Moon, J. 

George T. Fry for Insurance Company. 

Creed F. Bates for Norment. 



SEPTEMBER TERM, 1891. 



Insurance Company v. Norment. 



LuRTON, J. Oil March 18, 1890, the American 
Accident Insurance Company issued to W. T. Nor- 
ment an accident policy of insurance for five 
thousand dollars. This policy was for the term 
of one year, and insured him in the sum of 
twenty-five dollars per week against loss of time, • 
not exceeding fifty-two consecutive weeks, resulting 
from bodily injuries eftected during the term of 
this insurance, "through external, violent, and ac- 
cidental means;" *'or, if death shall result from 
such injuries alone within ninety days, will pay the 
sum of five thousand dollars to Virginia F. Nor- 
ment, his wife." 

Norment died on June 26, 1890, and his widow 
sued alleging that his death occurred as the result 
of an accidental, external injury received by him 
while said policy was in force. There was a jury, 
verdict, and judgment in favor of the plaintift 
below. 

The first error assigned is that the death did 
not occur within ninety days after sustaining an 
accidental injury, and as a consequence of such 
injury alone. There was conflicting evidence as to 
the cause of the death of the insured. There was 
evidence tending to show that deceased had fallen 
upon a slippery sidewalk, striking the back of his 
head, and that his death resulted from this injury. 
There was likewise evidence tending to show that 
death was caused by disease having no direct con- 
nection with this injury. There was a jiost mortem 
examination and conflicting opinion from the attend- 



KNOXVILLE : 



Insurance Company v, Norment. 



ing medical men as to the cause of death. The 
question as to whether death resulted alone from 
accidental, external injury was submitted to the 
jury under a correct charge; and, under the well- 
settled rule of this Court, the finding of the jury, 
being supported by material evidence, cannot be 
disturbed. 

There was evidence that this accidental injury 
occurred on March 23, 1890, and there was evi- 
dence that the date when this injury was received 
was March 30. If it occurred on the earlier date, 
then the death did not occur until after expiration 
of ninety days. If it was sustained on the later 
date, then Mr. Norment died within ninety days 
thereafter, and Within the terms of the policy. 

Mrs. Norment's letter to the company notifying 
it of the injury stated March 23 as the day of 
injury. This letter was written before her husband's 
death, and with a view of claiming the indemnity 
against loss of time resulting from the injury. We 
.do not think this concluded her from showing, if 
she could, that slie was mistaken in this date. 
The date was not then material, as Mr. Norment 
was not disabled so as to be prevented from at- 
tending to , his ordinary business for fully a week 
after sustaining the injury, and no indemnity was 
claimed or paid for any disability between the two 
dates. The weight of evidence seems to have been 
in favor of the date originally stated by Mrs. Nor- 
ment; but there was evidence, if credited by the 
jury, sufficient under the rule to support a finding 



SEPTEMBER TERM, 1891. 



Insurance Company v» Norment. 



in favor of the later date. The first and third 
assignments, being substantially the same, are over- 
ruled. 

The fourth condition of the policy was in these 
words : 

"Immediate ^vritten notice of an accidental injury 
or death for which claim may be made, must be 
given to the company at Louisville, Kentucky, w^ith 
full particulars thereof— when, where, and how it 
occurred, with full name and address of the in- 
sured — and failure to give such notice shall invali- 
date all claims under this insurance; and unless 
affirmative and positive proof of death, or loss of 
limb or sight, or of duration of disability is so 
^ furnished within six months from date of death, 
or within thirty days from date of the termination 
of the period of total disability, then all claims 
bitsed thereon shall be forfeited to the company. 
No legal proceedings for recovery hereunder shall 
be brought within three months after receipt of 
such proof at the office of the company in Louis- 
ville, Kentucky, nor at all unless begun within one 
year from date of alleged accident." 

Plaintift' in error insists that no such notice was 
given of this injury as is required by the clause 
quoted, and that no proof of injury or death was 
received at the office of the company at Louisville 
before institution of this suit. 

There was evidence that plaintiif went to the 
office of the local agent more than once for the 
purpose of notifying him of this injury sustained 



6 KNOXVILLE : 



Insurance Company tk Norment. 



by the assured. Not finding the agent in, she 
notified a female clerk in the office, and asked 
her to see that the agent called upon Mr. Nor- 
ment. Of this the local agent was notified, who 
thereupon in writing notified the office at Louis- 
ville of the claim. The home office at once no- 
tified the local agent to investigate the matter. 
At the request of the local agent the physician of 
the company called to see Mr. Norment, and made 
an examination. This was on the first of June. 
Afterward the general agent from Louisville, to- 
gether with the company's surgeon, called upon 
and took statement of plaintiff and examined the 
assured. This general agent, as testified to by 
Mrs. Norment, then said to her that by her delay 
Mrs. Norment had forfeited all claim under tl>e 
policy, but that th'e company did not desire to 
take any technical advantage, and that the case 
should be investigated on its merits. In addition 
to all this actual notice, plaintiflT procured a friend 
to write to the home office as to this claim. 
After the death of Mr. Norment thfe company's 
surgeon participated in a 'po^i mortem examination 
held for the purpose of ascertaining cause of death. 
The learned Circuit Judge charged the jury 
that it must appear that written notice had been 
given within a reasonable time after this injury 
was sustained, but that written notice might be 
waived; and it was for the jury to look to all 
the circumstances and say whether written notice 
had been given, or, if not, had such notice been 



SEPTEMBER TERM, 1891. . 



Insurance Company v. Norment. 



waived, and had such notice been given within a 
reasonable time. The notice to the local agent 
was given some time between the first and last of 
May. The seriousness of the injury did not be- 
come apparent until early in April. The notice 
to local agent was not in writing, nor was it 
given by plaintift' or assured personally to the 
Louisville office. When a policy requires notice 
of an injury or loss to be given in writing to 
the home office, it is not always necessary that it 
be given by the assured himself. . It is sufficient 
if it is given at the request of the assured by 
the agent of the insurer. Here the local agent 
was requested to investigate this accident. He 
wrote the company under this notice received by 
him. Written notice from the local agent of the 
insurers has been held sufficient where such notice 
was the result of information communicated by the 
assured. Wood on Insurance, 938, 939. 

The purpose of such notice is to give the in- 
surer opportunity to investigate for itself the cause 
and extent of the injury. This actual notice was 
received by the company, and the case in fact 
investigated. The jury might well, on the facts 
shown as to this investigation, both before and 
after death of assured, find that written notice 
had been waived and that actual notice had been 
given within a reasonable time. 

The very able counsel for the company has 
very earnestly argued that even if all this be so, 
that this suit was premature; that it was brought 



8 KXOXVILLE : 



Insurance Company v. Norment. 



within less than three months after death of as- 
sured, and before the receipt of proof of injury 
and death at office of the company in Louisville. 
The Court was on this point requested to charge 
"that no legal proceedings for recovery upon the 
policy sued on could he brought until after the 
expiration of three months after receipt of affirma- 
tive and positive proof of death of the insured at 
Louisville; and if from the evidence it should ap- 
pear that this suit was brought before proof of 
the death of Mr. Xornient was received bv the 
company, or before the expiration of three months 
after such proof was received by the company at 
its office in Louisville, Kentucky, then your ver- 
dict should be for the defendant." This was 
charged with this modification : " That request is 
the law as I have heretofore charged you. If 
you find from the proof that this notice was 
waived, and suit brought within three months 
after the waiver of the condition, then the plaintiff 
can recover." Elsewhere the jury had been charged 
as to what facts would constitute a waiver under 
this policy. Counsel now insist "that there is no 
evidence in the record to justify a charge that 
the provisions of this clause of the policy had 
been waived." It is a mistake to assume that 
the jury were charged that this provision of the 
policy had been waived. The jury were instructed 
that it might be waived, but the fact of waiver 
was left to their determination. 

We have already recited the facts concerning 



iSEPTEMBER TERM, 1891. 9 

Insurance Company v. Norment. 

actual notice, of both injury and death, and of 
the investigation actually made by the insurer. 
In addition, we may add that plaintiff, through 
her agent, did in writing notify the company of 
the death of her husband, and request blank forms 
for proofs of injury and death. To this the com- 
pany replied, declining to make an investigation 
until Mrs. Norment should sign and return an 
agreement in the following words : 

"I hereby agree that in the event of the 
American Accident Company making an investi- 
gation of my claim against them for injuries re- 
ceived by my husband, W. T. Norment, on March 
23, 1890, they shall not be considered to have 
waived the failure on my part to give immediate 
notice of the injury." 

She declined to sign this paper, being unwilling 
to fix March 23 as the date of injury, thereby 
cutting ofiF her claim that the death of her hus- 
band had resulted from an injury received within 
ninety days prior to his death. 

She again requested "information in regard to 
proof of claim, etc.," and asked an early reply. 
The company again declined to proceed unless she 
would sign the agreement previously sent. A third 
letter was written requesting instruction and blank 
forms for proofs of death. Again the company 
refused to send such blanks or investigate unless 
she would sign an agreement identical with the 
first sent, save in omission of day of injury. Upon 
this repeated refusal to give instructions or send 



10 KNOXVILLE : 



Insurance Company v, Norment. 



blanks this suit was brought. The .agreement as 
last sent was prejudicial to the claim of plaintiflf, 
in that it was, in effect, an admission that she had 
failed to give immediate notice of the injury. 
This construction, while not necessarily following, 
was possible, and indeed probable, and it is clear 
that to have signed it would have put her case 
in peril. This she was not bound to do. The 
refusal to aid her with instructions or forms, or 
to investigate, unless she would prejudice her case 
by signing an agreement which the insurer had 
no right to require her to sign, was evidence upon 
which the jury could well predicate a verdict of 
waiver of proof of death. This, together with the 
fact that the company had in fact investigated 
before the death of assured, and been represented 
at the 'post mortem after his death, makes a clear 
case of waiver of the technical proofs of death re- 
quired by policy. This conduct was equivalent to 
an absolute refusal to consider or settle the case. 
When the insurer waives proof of injury or death, 
and refuses out and out to treat as to liability, 
save upon prejudicial and illegal conditions, suit 
may be brought at once, notwithstanding the clause 
postponing suit until ninety days after receipt 
of proofs of injury. A provision exempting an in- 
surer from suit for a definite time after proofs 
of loss have been made, will be waived where 
there has been a waiver of such proofs and a re- 
fusal to pay. Lawson on Rights, Remedies, and 
Practice, Sees. 2084, 2086, and cases cited ; Am. 



SEPTEMBER TERM, 1891. 11 

Insurance Company v, Norraent. 

& Eng. Eucy. of Law, Vol. II., 349, 350, and 
cases cited. 

The result is that we find no error in the 
charge or refusals to charge. 

Affirm the judgment'. 



12 KNOXVILLE: 



Bank v. Lumber and Manufacturing Co. 



Bank y. Lumber and Manufacturing Co. 



{K7ioxville. November 17, 1891.) 



I. Corporations. AW insolvent^ when. » 

A corporation is not insolvent in such sense that its assets become a 
fixed trust fund in the hands of its officers for pro rata distribution 
among its creditors, so long as it continues to be a going concern, 
conducting its business in the ordinary way, although its debts may 
greatly exceed its assets. 

Cases cited and approved: Moseby v. Williamson, 5 Heis., 278; Com- 
fort ?'. McTeer, 7 Lea, 660. 



2. Attachment. Of assets of insolvent corporation. 

And attachment for sufficient cause of the assets of such indebted 
corporation by some of its creditors secures them priority over other 
creditors, although the corporation subsequently commits a decisive 
act of insolvency, as, c. g.^ by general assignment and cessation of 
business. 



FROM MARION. 



Appeal from Chancery Court of Marion County. 
T. M. McCoNNELL, Ch. 

W. T. Murray and Frank Spurlock for Bank. 



SEPTEMBER TERM, 1891. 13 



Bank v. Lumber and Manufacturing Co. 



Brown & Spears, Andrews & Barton, Bright k 

^^ • 

Early, and Byron Pope for Company. 

TuRNBY, Ch. J. The North Alabama Lumber 
and Manufacturing Company was a corporation 
doing business in Alabama and Tennessee, its chief 
office at Bridgeport. On September 2, 1889, its 
liabilities were $208,857. By subsequent sales there 
were realized $24,898, which constituted its entire 
assets. On September 30, 1889, the City Savings 
Bank and others attached the property in Tennes- 
see. On October 7 the First National Bank of 
TuUahoma filed a similar bill. Other bills were 
subsequently filed, aggregating perhaps a dozen. 
The defendant company was in full operation, 
transacting its usual business, in possession of its 
property, and running its plant in the State of 
Alabama up to October 3, 1889, when its property 
was levied upon at the instance of the City Sav- 
ings Bank by attachment issued from the Federal 
Court at Huntsville. On October 14, 1889, de- 
fendant company made a general assignment. On 
October 11 the company and the City Savings 
Bank entered into an agreement, the company to 
confess judgment in favor of the bank in the 
cause at Huntsville for $17,191.78, the property 
attached to be condemned and sold for satisfaction 
of the amount decreed; that the company should 
make a general assignment of all its property in 
both States, with power of sale, and to satisfy 
first out of the Alabama property the Alabama 



14 KNOXVILLE : 



Bank v. Lumber and Manufacturing Co. 



judgment; that the company should confess a 
judgment in favor of the bank for $3,500 in the 
proceedings in Tennessee, to be first paid out of 
the Tennessee property. 

On August 20, 1890, the First National Bank of 
Tullahoma filed a bill against all the other attach- 
ing creditors and the Lumber and Manufacturing 
Company, charging that at the date of the attach- 
ments it was insolvent; that the attachments did not 
secure priority of payment, and the property must 
be held in trust for the payment of all creditors. 

"A creditor of an insolvent corporation is en- 
titled to pursue the ordinary legal and equitable 
remedies for the enforcement of his claims, unless 
he is restrained from doing so at the suit of the 
corporation or of other creditors. Neither the cor- 
poration or other creditors would be able to pre- 
vent him from pursuing 'the ordinary remedie& 

 

given to creditors, except by instituting proceedings 
for the purpose of securing a general distribution 
of the company's assets," etc. 2 Morawetz on Pri- 
vate Corporations, 364. 

There were, at the time of the filing of the 
attachment bill, no evidences of insolvency, and 
none charged. The grounds charged are non- 
residence and fraudulent disposition, and seeking 
an ordinary remedy. 

In Moseby v. Williamson, 5 Heis., 278, Nichol- 
son, Ch. J., said: "It appears in proof that 
plaintiflT became creditor of the savings institution 
after it closed and suspended, but before stops 



SEPTEMBER TERM, 1891. 15 

Bank v. Lumber and Manufacturing Co. 

were taken to wind it up .as an insolvent corpo- 
ration. It is provided by the bankrupt law that 
if a bank stops or suspends fraudulently for a 
period of fourteen days it is deemed to have com- 
mitted an act of bankruptcy, but if the suspension 
be not fraudulent, it is not an act of bankruptcy. 
In analogy to this rule as to bankruptcy, we can- 
not see upon what ground the insolvency can be 
assumed from the simple fact of closing its doors 
for two' or three days, or until some such step as 
filing a bill to have its insolvency determined has 
been taken.'' 

"There must be some positive act of insolvency, 
such as the filing of a bill to administer the assets, 
or the making of a general assignment or a per- 
manent cessation to do business." Comfort v. Mc- 
Teery 7 Lea, 660. 

In the present case there was no stop, no sus- 
pension of business, no closing of doors; on the 
contrary, there was no lack of active operation on 
the part of the company, and its officers were 
hopeful of success. 

The assets of a corporation are a trust fund 
for the benefit of creditors only from the date of 
assured insolvency, and a creditor having a riglit 
to sue in one of the ordinary ways at law or in 
equity, not suggesting insolvency, is not to be de- 
prived of the fruits of his action because insolvency 
may thereby be brought about or hastened. 

Decree reversed, and decree here giving creditors 
priority in the order of their several attachments. 



16 KNOXVILLE : 



Haworth r*. Monigomery 



HaWORTU r. MONTGOMEKY. 

{KnoxxUle. November 17, 1891.) 

Physicians. Practicing iviihout license not entitled to recover compensation 
for services rendered,^ 

Physician cannot recover compensation for professional services ren- 
dered since Act 1889, Ch. 178, went into effect — viz., on June 3, 
1889 — unless he had, prior to rendering such services, qualified him- 
self to practice medjcine in this Slate by obtaining the certificate of 
authority required by that Act, and having it duly recorded as therein 
prescribed. 

Act construed : Acts 1889, Ch. 178. 



FROM RHEA. 




Appeal in error from Circuit Court of Rhea 
County. Arthur Traykor, J. 

S. W. SwABY for Haworth. 

Fred L. Mansfield and W. B. Miller for 
Montgomery. 

LuRTON, J. Plaintifl* in error, claiming to be a 
l)ractitioner of medicine, sued the defendant upon 



SEPTEMBER TERM, 1891. 17 



Haworih z: Montgomery. 



an account for medical services rendered between 
December 18, 1889, and January 20, 1890. There 
was a judgment for the defendant. 

By the first section of Chapter 178 of the Acts 
of 1889 it is provided "that no person shall 
practice medicine in any of its departments, except 
dentistry, within this State, unless such person 
possess all the qualifications required by this Act.". 
The Act then proceeds to prescribe the manner 
in which one may continue or enter upon the 
practice of the medical profession. 

By Section 2 of same Act, it is provided 
"that all persons who shall be in the actual 
practice of medicine or surgery in the State at 
the time of the passage of this Act, shall, within 
six months after this Act takes eftect, be required 
to make satisfactory proof of this fact to the 
County Court Clerk of the County in which he 
resides, when said County Court shall issue a cer- 
tificate in accordance with the facts, and such cer- 
tificate shall entitle the lawful holder thereof to 
all the privileges contemplated in this Act. A 
certified copy of this certificate shall be forwarded 
to the State Board of Medical Examiners." 

This Act was passed April 3, 1889, and took 
effect June 3, 1889, sixty djiys after its passage. 
Miss Ilaworth did not comply with this provision 
within the six months prescribed by the Act, nor 
obtain a certificate from State Examiners as other- 
wise provided in that Act. At the time the 
services sued for were rendered, she was not a 

2—7 i> 



18 KNOXVILLE : 



Haworth t. Montgomery. 



/ 
• 



person authorized to practice medicine in this State, 
and by the fourteenth section of the Act was liable 
to the penalty of twenty-five dollars for practicing^ 
without license. 

Plaintiff in her evidence states that on February 
25, 1891, she did register herself before the County 
Court Clerk and obtain his certificate. This was 
after the services rendered to defendant, and was 
done by virtue of the provision in the Act of 
1891, Chapter 109, amending the Act of 1889. By 
this amendment the time within which an actual 
practitioner might register before the County Court 
Clerk and obtain the certificate provided by the 
second section of the Act of 1889 was extended ta 
July 1, 1891. This cannot help plaintift*'s case, 
for at the time she attended defendant she was 
prohibited from practicing, and her subsequent reg- 
istration and compliance with the law can have no 
retrospective eft'ect. 

Plaintift* says that prior to this compliance with 
the law, she had obtained what she calls a "tem- 
porary license," but cannot say that she had this 
"temporary license" at time she attended defendant. 
8he admits that this "temporary license"" was never 
recorded as required by Section 9 of Act of 1889. 
This section requires that "every person holding a 
certificate from the State Board of Medical Exam- 
iners, or the County' Court Clerk, shall have it 
recorded in the oflice of. the County Court Clerk 
in which he resides, and the date of record shall 
be indorsed thereon. Until such record is made. 



SEPTEMBER TERM, 1891. 19 



Haworth v. Montgomery. 



the holder of such certificate shall not exercise any 
of the rights or privileges therein conferred to 
practice medicine." 

In view, therefore, of the plain provision of 
this section, it cannot matter what the character 
of her "temporary license" was, inasmuch as it was 
not recorded. The contract sued upon was one 
expressly prohibited by the statute. Where a 
statute has for its manifest purpose the promotion 
of some object of public policy, and prohibits the 
carrying on of a profession, occupation, trade, or 
business, except in compliance with the statute, a 
contract made in violation of such statute cannot 
be enforced. 

This is familiar law, and the judgment must be 
affirmed. 



20 KNOXVILLE 



« 20, 
•110 614 



Ruohs r. Athens. 



RuoHS r. Athens. 
{Kitoxrille, November 17, 1891.) 

1. MUNiril'AL Bonds. V'oid in hands of bona fide holder for value ^7vhm. 

If the charter of a municipal corporation i.s absolutely void, its bondb, 
though regular and proper in every other respect, are void, even in 
the hands of a bona fide holder for value. There is in such case no 
corporate existence, and therefore no corporate power, and of such 
defect the purchaser of municipal bonds must, at his peril, take 
notice. 

Case cited and approved: Ii8 U. S., 425. 

2. MrxiciPAL Corporations. Charter of void, when. 

A municipal corporation, acting under charter purporting to have been 
issued pursuant to Acts 1875, ^^' 9^* entitled "An Act to regulate 
and organize municipal corporations," etc., and Acts 1877, Ch. 121, 
amendatory thereof, has not, in contemplation of law, any existence 
or powers unless there has been indorsed upon the application for 
charter and registered with it, the certificate of the officer holding 
the election as to ** corporation " or ** no incorporation" showing 
** the number of voters on the list, and that at least two-thirds thereof 
have voted in favor of the incorporation of the town." 

Acts construed: Acts 1875, ^^- 9^; Ads 1877, Ch. 121, Sec. 8. 

Case cited and approved: Hooper r*. Khea, MS., Knoxville, 1885. 

3. Same. /Repeal of charier. 

Athens was incorporated in i860, by the County Court, pursuant to the 
general law contained in ^ 1349 el seq. of Co<le of 1858. On February 
25, 1870, an Act was passed granting Athens a special legislative 
charter. The corporation accepted this charier, organized and ex- 
isted under il until 1879, when an Act was passed repealing the 
charter of 1870. 

Held: Athens was without corporate existence after the repealing Act 
of 1879. The County Court charter vva> al)andone(l by acceptance 



SEPTEMBER TERM, 1891. 21 



Kuohs V. Athens. 



of legislative charter of 1870, and was not revived upon repeal of 
that charter. 

Code construed: % 1349 ei seq, (T. & S.). 

Acts construed : Acts 1869-70, Ch. 69; Acts 1879, Ch. 255. 

Case cited and approved^ Burk zk State, 5 Lea, 349. 

4. Constitutional Law. Validity of repealing staitties. 

By §? 39-49, inclusive, of an Act passed February 25, 1870 (prior to 
Constitution of 1870), Athens was granted a legislative charter. 
This Act embraced several distinct subjects, and its title contained no 
reference to this part of its subject-matter. By an Act passed in 1879 
this charter was repealed. The- repealing Act gave no intimation, 
either in its caption or body, of the nature of the legislation to be 
repealed, but recited in its caption the title of the Act of 1870, and 
in express terms repealed "Sections 39, 40, 41, 42, 43, 44, 45, 46, 47, 
48, and 49 of Chapter 69 of an Act passed February 25, 1870.'* 

Held: This repealing Act of 1879 does sufficiently recite in its "caption 
or otherwise the title or substance of the law repealed." 

Constitution construed: Art. II., Sec. 17. 

Acts construed : Acts 1869-70, Ch. 69; Acts 1879, C*>- 255. 

5. Supreme Court. lis opinions ^ hoiv construed. 

In determining what has been decided by an opinion of this Court, the 
statement of facts contained in the opinion must be taken as con- 
clusive, and may not be changed or corrected by reference to the 
record or otherwise. 



FROM M MINN. 



Appeal from Chancery Court of McMinn County. 
H. R. Gibson, sitting by interchange. 

Dbwitt, Thomas & Dewitt, and Pritchard, Sizbr 
k Thomas for Ruohs. 



22 KNOXVILLE : 



Ruohs z>. Athens. 



IioB£soN & Gaston, P. B. Mayfield, and Burkett, 
Mansfield & Turley for Athens. 

Snodgrass, J. Complainant brings this suit to 
recover of defendant, alleged to be an incorporated 
town of this State, the amount now due him upon 
certain interest-bearing bonds issued by defendant 
on October 1, 1888. There were twenty-two of 
these bonds, of the denomination of $1,000 each, 
payable to bearer October 1, 11^08, with interest at 
six per cent., payable semi-annually, evidenced by 
coupons attached. They were issued to the Nash- 
ville and Tellico Railroad Company in consideration 
for stock subscribed by defendant. The bonds 
were purchased by complainant, who is a bona fide 
liolder, and they were regularly issued and under 
proper legislative authority, and are valid and 
binding obligations of defendant if defendant is a 
legally incorporated city, or if, as between itself 
and complainant, it cannot rely on the defense of 
non-corporate existence now interposed. 

At the time of the issuance of said bonds, and 
for some years prior thereto, it was acting as a 
corporation. As such it issued the bonds through 
its proper officers, and under its corporate seal, 
with such recitations as were proper, and showed 
the legality of the bonds in case they were issued 
by the corporation duly organized. 

It did assume a legal existence a« a municipal 
corporation, and legal power as such to issue the 
bonds. Legislative power thus assumed existed to 



SEPTEMBER TERM, 1891. 23 



Ruohs V. Athens. 



issue the bonds, if it were a corporation, and the 
first question is: Was it a corporation legally, as 
well as in fact, organized. 

It appears that the town of Athens was origi- 
nally incorporated by the County Court of McMinn 
County, in the year 1860, under Code, §§1349 
et seq., but that that organization of the corporation 
was superseded by the organization of the town as 
a municipal corporation under the Act of 1869-70, 
Chapter 69, Sections 39 et seq.^ pages 500 et seq.; 
that the Act of 1869-70 was repealed by the Act 
of 1879, Chapter 255, page 296, and said repeal 
was accepted and acquiesced in; that the town 
was without municipal organization or government 
until June or July, 1881, when an attempt was 
made to organize said town into a municipal cor- 
poration under the Act of March 25, 1877 (Acts 
1877, Chapter 121, amending Acts 1875, Chapter 92), 
which attempt was void because the certificate of 
the Sherift' holding the election was not indorsed on 
the application and registered with it, as required 
by Section 8 of the Act of 1877, Chapter 121. 

This was the defense set up by defendants, the 
last Board of Mayor and Aldermen of the town, 
averring, in consequence, that all acts under such 
attempted incorporation were void, together with 
further plea that they had resigned, and their 
resignations had been accepted before the filing of 
<jomplainant's bill. 

We state the above facts respecting the incor- 
poration and repeals and effbrt to re-organize and 



24 KNOXVILLE : 



Ruohs 7>. Athens. 



failure, because without elaborating the propositions 
or debating the questions involved in the statement, 
we hold them to be settled as stated, and time 
forbids that we should attempt the detailed answer 
to the able and elaborate arguments of complain- 
ant's counsel to the contrary, which these argu- 
ments so well merit. 

It is sufficient to say that it has been settled 
that the Act of 1879 repealed the charter of 1870, 
and this did not revive the incorporation of 1860. 
Burk V. The State^ 5 Lea, 349. 

It is said this case should not be followed, that 
it was upon an agreed statement of facts, and, even 
if correct thereon, is erroneous on the real facts. 
It does not appear to be on an agreed statement 
of facts, and we cannot look outside the opinion 
to determine that question. What appears in an 
opinion is the matter submitted to the Court and 
agreed to in consultation, and not that which 
might have existed and not been submitted. The 
Court concurs in an opinion as it appears, and is 
bound by it, and not by any thing outside of or 
beyond it. The record cannot be looked to to 
correct or change it. But besides, the opinion 
deals with the question of effect of repealing 
statutes which could not have appeared differently 
to the Court then and now. 

In this opinion a litigation fairly involving the 
very questions now in issue was discussed and dis- 
posed of. It is conclusive, and we have no dis- 
position to review it. 



SEPTEMBER TERM, 1891. 25 



Ruohs V, Athens. 



Here the repealing Act of 1879 was held valid, 
but ill this case it is again assailed as void under 
Section 17 of Article II. of the Constitution pro- 
viding that "Acts which repeal, revive, or amend 
former laws shall recite in their caption or other- 
wise the title or substance of the law repealed, 
revived, or amended." 

The Act is not open to this objection. It 
does in its caption recite the title of the Act 
repealed. 

It is not necessary to pursue the argument of 
complainant's counsel that this repealing Act is an 
exception because the title of the Act repealed 
conveyed no idea of the purpose of the last Act. 
The Act by reference to that repealed, when the 
latter was read, did show its purpose. It would 
mislead no one who read the Act referred to. 

Tfte town of Athens was therefore not incorpo- 
rated when it made an effort to organize under 
the Act of 1877. That effort failed for the reason 
that the certificate of the Sheriff* holding the elec- 
tion Avas not indorsed on the application for charter 
and registered with it. The charter was therefore 
void by express provision of the statute. Acts of 
1877, Ch. 121, Sec. 8, p. 146; Hooker v. Bhea, 
MS., Knoxville, 1885. 

It consequently^ follows that the town of Athens 
was not a legally incorporated town when it issued 
the bonds in question. This brings us to the 
most serious question in the case: Whether the 
defendant can now rely on the defense of no cor- 



26 KNOXVILLE : 



Ruohs V, Athens. 



porate existence, having acted as a corporation and 
issued the bonds while in apparent exercise of 
legal corporate power. This is a question of much 
difficulty. There is a line of most respectable 
cases on the negative of the proposition stated, 
but in none of them is the question determined 
that a corporation attempting to organize under a 
general law which declares that the charter shall 
be void for non-compliance with special provisions 
thereof, shall be held by estoppel or otherwise to 
be a corporation. But whatever may be the rule 
held elsewhere, it is settled here in cases most 
maturely considered that a body or corporation 
having no legal existence has no legal power to 
issue bonds or obligations of a binding character, 
and that such body or corporation does not obtain 
a de facto status so as to require a direct proceed- 
ing by the State to avoid its existence or its' acts. 
In the two opinions in Hooper v. Rhea^ already 
referred to, the last proposition is settled, and the 
first is determined in certain cases in this State, 
cited and approved in case of Norton v. Shelby 
Cotuity, 118 U. S., 425; Lawyers' Co-op. Ed., Book 
30, p. 178. 

The rule here established, and which met the 
approval of that Court in that case, was that 
want of power to issue involved want of legal 
creation of the body which did issue the bonds, 
and that if there was no de jure office created 
wliich could be filled, there could be no de facto 
officer filling it; if there was no de jure corpora- 



SEPTEMBER TERM, 1891. 27 



Kuohs V. Athens. 



tion, it could have no de facto representation. This 
is a sound view, and we re-assert it as correct. 

Such a rule would not of course apply to ir- 
regularly organized corporations, or those which 
ohtained such validity by special grant of the 
State or compliance with general law, as to be 
merely voidable organizations, and such as the 
State by direct proceeding could alone dissolve; 
but where the Constitution or the statute provides 
that acts done or omissions occurring: in effort to 
organize a municipal corporation shall render the 
attempt to organize and the charter invalid and of 
no force whatever, it is not left to the Court to 
disregard this statutory or constitutional prohibition 
at the instance of a creditor deceived by the 
appearance of an organization. It was his duty ta 
ascertain, first, is there a legal corporation; and, 
second, has it power to issue the bonds proposed 
to be sold. He must, at his peril, determine both 
questions for himself. 

The decree is affirmed with cost. 



CASES 



ARGUED AND DETERMINED 



IN THE 



SUPREME COURT OF TENNESSEE, 



FOR THE 



MIDDLE DIVISION. 



NASHVILLE, DECEMBER TERM, 1891. 



Boone & Howison v. Bush. 



(Nashville, December 12, 1891.) 



Set-off. Defendant entitled to trial upon his plea of although plaintiff dis- 
misses his suit. 

Although the plaintiflf dismisses his suit, the defendant is entitled to a 
trial upon his plea of set-off. This rule is applicable to suits in both 
the Circuit and the Justices' Courts. 

Code construed : ^2922, 4160 (T. & S.) ; §?3632, 4936 (M. & V.). 

Acts construed: Acts 1879, Ch. 222. 



30 NASHVILLE : 



Boone & Howison v. Bush. 



Cases cited and approved: Riley v. Carter, 3 Hum., 232; Galbraith v. 
Railroad, 11 Heis., 169; Edington ^f. Pickle, i Sneed, 122; Baker 7/. 
Grigsby, 7 Heis., 627; Brazelton ?'. Railroad, 3 Head, 571. 



FROM SUMNER. 



, Appeal ill error from Circuit Court of Sumner 
County. A. II. Munford, J. 

S. F. Wilson and George W. Boddie for 
Boone & Howison. 

J. J. Turner and T. C. Mulligan for Bush. 

Caldwell, J. E. T. Bush and wife commenced 
this action in the Circuit Court of Sumner County^ 
to recover from Boone & Howison $1,500, as dam- 
ages for misrepresentations alleged to have been 
made by them in the sale of thirty barrels of seed 
Irish potatoes. 

Among the several defenses interposed by the 
defendants was a plea of set-off, in which they 
averred that the plaintiffs owed them fl50 for said 
potatoes, and sought a judgment for the same. 

The case was once tried in the Circuit Court, 
and appealed in error to this Court. Here the 
judgment below \vas reversed and the case re- 
manded for a new trial. 



DECEMBER TERM, 1891. 31 



Boone & Howison v. Bush. 



Thereafter, when called for a second trial in the 
Circuit Court, the plaintiffs appeared and voluntarily 
dismissed the suit. The defendants • objected to 
the dismissal so far as their claim against the 
plaintiffs was concerned, and sought a trial on 
their plea of set-off; but judgment was pronounced 
and entered dismissing "the whole suit, including 
the set-off and cross-action of the defendants." 

From this judgment defendants have appealed in 
error. 

Generally a party plaintiff* may dismiss his suit 
whenever he chooses to do so, and the defendant 
will not be heard to object. In the ordinary case 
the defendant's attitude is one of resistance merely, 
and his only object is to defeat the plaintiff's 
action. He has no other interest in the litigation; 
hence, if the plaintiff' comes and voluntarily dis- 
misses his suit, the defendant must acquiesce — he 
can ask nothing more. By the voluntary dismissal 
every thing is accomplished which could be attained 
, by a trial and successful defense. 

That rule, however, is not applicable in the 
case before us. This is an exceptional case, where- 
in the attitude of tlie defendants is both defensive 
and aggressive; not defensive merely, as in the 
ordinary suit. 

By Section 1, Chapter 53, Acts 1815, Justices 
of the Peace were authorized to render judg- 
ment in favor of a defendant pleading a set- 
oft*, for such sum as might appear to be due him 
in excess of the demand established against him 






32 NASHVILLE: 



Boone & Howii>ou v. Bush. 



by the plaintiff;'. 2 Scott's Laws, p. 2c6; Code, 
§ 4160. 

That Act unaterially clianged the attitude of tlie 
parties to such a case, and conferred upon the 
defendant therein such interest and right in the 
litigation that the plaintiff could not dismiss his 
suit at pleasure, and thereby deprive the defendant 
of a trial on his plea of set-off*. It was so 
adjudged in Riley v. Carter^ 3 Hum., 232. 

The Act of 1815 related alone to cases originat- 
ing: before Justices of the Peace; but a similar 
provision was made by Section 2, Chapter 259, 
Acts 1851-52, with reference to cases brought in 
the Circuit Courts of the State. Cade, §2922. 

This enactment changed the jittitude and aff'ected 
the interests and rights of the parties litigant in 
the Circuit Courts in the same manner, and to 
the same extent, as those of parties to a litigation 
before Justices of the Peace were changed and 
affected by the Act of 1815; consequently, the 
same reasoning by which the plaintitt^'s right to 
dismiss his suit was denied in the case of Riley v. 
Carter^ supra, is available to show that the plaint- 
iff's in the* case before us had no power to dis- 
miss their suit over the objection of the defendants, 
and that the action of the Circuit Judge, in per- 
mitting the dismissal, was erroneous. 

In Galbraith v. Railroad, 11 Heis., 169, it was 
decided that a plaintiff' in an action at law in the 
Circuit Court, could not dismiss his suit, after an 
account had been ordered and a report made 



DECEMBER TERM, 1891. 33 



Boone & Howison v. Bush. 



fihowing a balance in favor of the defendant on 
his plea of set-oft*. 

Though the plaintiff, in the cases contemplated 
by the Acts of 1815 and 1851-52, has no power 
to dismiss his suit, it has been several times held 
that, the defendant's right to judgment for fcalance 
in his favor, on a plea of set-oft*, is incidental to 
and dependent upon the plaintiff^'s having 'actually 
established a debt, in some amount, against him; , 
and that if, upon trial, it turned out that the 
defendant owed the plaintift* nothing in the first 
instance, the right of set-oft* would not exist, and 
the defendant could have no recovery against him 
for a proven debt. Edingtoii v. Pickle^ 1 Sneed, 
122; Brazelton v. Railroad^ 3 Head, 571; Baker v. 
Grigsby, 7 Heis., 627; Galbraith v. Bailroad, 11 
Ileis., 174. 

To meet that construction and enlarge the 
former enactments the Act of 1879 was passed. 
It provides that "if the defendant pleads a set-off 
to plaintiff's debt, and it appears that there is a 
balance due in favor of the defendant^ the Justice 
or the Court trying the case shall enter up judg- 
ment in favor of the defendant and against the 
plaintiff* for such balance; and if the plaintiff fails 
in establishing any demand against the defendant^ the 
defendant shall have judgment against the plaintiff 
for the amount ichich the proof upon his cross-action 
shoios that he is entitled to^ with costs,^^ Acts 1879, 
Ch. 222, Sec. 1; Code (M. & V.), §4936. 

Under this Act, the defendant pleading a set-oft' 
H— 7 p 



34 NASHVILLE : 



Boone & Howison v. Bush. 



has greater rights than under the former Acts, and 
for the better reason may dispute the plaintiti"8 
power to dismiss the suit; his right to a recovery 
for whatever indebtedness he may establish under 
his plea of set-oif*, is no longer dependent upon 
the plaintiff^'s having established a demand of 
smaller amount against him. 

When the defendant files his plea, averring a 
• counter claim, he becomes to that extent an actor, 
an aggressor^ in the litigation; and the plaintift* 
can no more defeat his right to a trial by a dis- 
missal of the suit, than the defendant can destroy 
that of the plaintift' by a withdrawal of his plea. 

The Act of 1879 includes suits originating in 
the Circuit Courts as well as those commenced 
before Justices of the Peace. The provision is 
that " the Justice or Court trying the case shall 
enter judgment in favor of the defendant," etc. 
If Justices of the Peace alone had been contem- 
plated as recipients of the enlarged power, the 
word "Court" would not have been used in the 
Act. 

It is true that the section of the Code amended 
related alone to cases before Justices of the Peace; 
nevertheless, it was allowable that the Legislature 
should by amendment enlarge the provision so as 
to embrace all cases of set-off, whether pending 
before Justices of the Peace or in Courts of record. 

Kevefse and remand. 



DECEMBER TERM, 1891. 35 

\ 

Railroad v. Wallace. 



Eailroad i\ Wallace. 
{Nashville. December 12, 1891.) 

1. Interest. Noi ailowadie as part of verdict for personal injuries. 

In suit to recover damages for personal injuries not causing death, it is 
error for the Court to instruct the jury that they may in ^their dis- 
cretion allow interest upon the amount of damages awarded, and 
include it in their verdict. Interest cannot be allowed at all in such 
case. 

Cases cited and approved : 79 Ga., 574; 81 Ga., 397 ; 104 Pa., 306. 

2. Remittitur. Of excessive verdict cures error, when. 

But where, in such case, the jury's verdict shows the amount of damages 
awarded and the amount of interest allowed thereon in separate 
items, this Court will not reverse the case, there b^ing no other error, 
if the plaintiff will enter remittitur of the interest. 






FROM SUMNER. 



Appeal ill error from Circuit Court of Sumner 
County. H. C. Carter, Sp. J. 

J. J. Turner for Railroad. 

S. F. Wilson, R. K. Gillespie, and George 
W. BoDDiE for Wallace. 



36 NASHVILLE : 



Railroad 7-. Wallace. 



Snodgrass, J. The defendant in error, while in 
tlie service of the Louisville and Nashville Railroad 
Company as brakeman, sustained severe personal 
injury resulting in the loss of a leg, which he 
alleged was occasioned by the negligence of the 
company. He sued for §15,000 damages, and re- 
covered judgment for $9,940. 

The railroad company appealed and assigned 
numerous errors. It is not deemed material to no- 
tice but one of them, as the others are not well 
taken, and involve nothing new so as to make 
their consideration in a written opinion necessary. 

The one material to be considered relates to 
the question of interest. The Court told the jury 
it could assess plaintift''s damages, with or without 
interest, as the jury should see proper, in connec- 
tion with instructions as to the measure of dam- 
ages not otherwise complained of. The verdict 
assessed the damages at $7,000, with seven years' 
interest, $2,{>40, aggregating $9,940. 

It is objected in the assignment of errors that 
the charge on this question, and verdict with judg- 
ment thereon, arc erroneous. 

This involves a consideration of the question. 
What is the true measure of damages for such 
personal injury? 

The rule for determining damages for injuries 
not resulting in death (where the statute fixes the 
measure), and not calling for exemplary punish- 
ment, deducible from the decisions of this Court 
since its organization in this State, is that of 



DECEMBER TERM, 1891. 37 

Railroad z\ Wallace. 

compensation for mental suffering and physical 
pain, loss of time and expenses incident to the 
injury, and, if it be permanent, the loss resulting 
from complete or partial disability in health, mind, 
or person thereby occasioned. And this is the 
rule most consonant to reason adopted in other 
States. 3 Sedgwick on Damages, Sec. 481 et seq, 
(8th Ed.); Am. & Eng. Ency. of Law, Vol. V., 
p. 40-44, and notes; Illinois Central Railroad Com- 
pany v. Head, 87 Am. Dec, 260. 

As this sum in gross includes all the compeur 
sation which is requisite to cover pain, euftering, 
and disability to date of judgment and prospect- 
ively beyond, it is intended to be and is the full 
measure of recovery,- and cannot be supplemented 
by the new element of damages for detention of 
this sum from the date of the injury. The measure 
of damages being thus fixed, it is expected that in 
determining it juries and Courts will make the 
sum given in gross a fair and just compensation, 
and one in full of amount proper to be given 
when rendered, whether soon or late after the 
injury; as if given soon it looks to continuing 
suffering and disability, just* as when given late it 
includes that of the past. It is obvious that dam- 
ages could not be given for pain and suffering and 
disability experienced on the very day of trial, and 
then interest added for years before. These are 
items considered to make up the aggregate then 
due and the gross sum then for the first time 
judicially ascertained. 



88 NASHVILLE: 



Railroad 7f, Wallace. 



The error of the Court below was in the as- 
sumption that a like measure of damages is applied 
in this class of cases as in that of injury to 
property effecting its destruction or conversion, or 
other unlawful or fraudulent misappropriation or 
detention of property or money, in which the rule 
applied by the Circuit Judge is held to be a 
proper one, not on the theory, even in this class 
of cases, that interest as such is due, but that the 
plaintiff is entitled to the fixed sum of money or 
definite money value of property converted or de- 
stroyed, and the jury may give as damages an 
amount equal to interest on the value of the 
property. But such rule applies alone to such 
cases, and not to that of personal injury, w^hich 
does not cease when inflicted and is not sus- 
ceptible of definite and accurate computation. It 
never creates a debt nor becomes one until it is 
judicially ascertained and determined. Only from 
that time can it draw interest, and interest as 
damages cannot^ at any preceding time be added 
to it without changing and superadding a new 
element — never given in this State or any other in 
a similar case, so far as our investigation has dis- 
covered. 

The counsel of plaintiff, who cite many author- 
ities supposed to be in support of the ruling below, 
w^ere doubtless misled by the generality of terms 
used in some of them. Under the head of "in- 
terest," after stating that "it was generally allowed 
by law on two grounds, namely, on contract ex- 



DECEMBER TERM, 1891. 39 

Railroad v. Wallace. 

pressed or implied, or by way of damages either 
for default in payment of a debt or for a use or 
benefit derived from the money of another," it is 
stated in the Am. & Eng. Ency. of Law, Vol. II., 
that "where it is imposed to punish tortious, neg- 
ligent, or fraudulent conduct, it is a question 
within the discretion of the jury." Page 380. 

For this proposition various authorities are cited, 
including Mr. Sedgwick on Damages, page 874 
(the reference being to paging of the fifth or 
earlier edition). This author uses similar general 
terms, but neither was speaking of cases of per- 
sonal injury, but of the class of cases to which 
we have referred, as fully appears from Mr. Sedg- 
wick's further discussion of this genefal head on 
• pages 385, 386, and as most clearly appears from 
a reference to the authorities cited by both, which 
relate to cases of trover and trespass, and to 
property controversies only. 

In neither of these books is the proposition now 
thought to be sustained by them advanced — that 
the measure of damages for a personal injury in- 
chides damages for detention of the supposed 
amount due. 

The generality of statement indulged in that 
and former editions of this work is corrected by 
^editors of the last edition. Chapter 10 of the 
first volume of this edition is devoted to interest 
allowed in actions where it is by rule of law, or 
in the discretion of the jury or Court trying the 
case, allowed as part of the measure of damages. 



40 NASHVILLE : 



Railroad v, Wallace. 



In these cases are enumerated and discussed those 
actions sounding in tort in which interest may be 
given as damages. The distinction is there taken 
as taken here, and actions for personal injuries 
excluded because of the existence of a wholly 
different measure of damages respecting them. In 
this connection we quote Section 320 in the volume 
and chapter referred to : 

"It sufficiently appears from what has already 
been said that there is no general principle which 
prevents the recovery of interest in actions of tort. 
The fact that the demand is unliquidated has been 
shown to be insufficient to exclude interest, and 
there is nothing in the mere form of the action 
which renders it unreasonable that interest should 
be given. Nevertheless, it is in the region of tort 
that we find the clearest cases for disallowance of 
interest. There are many cases which are not 
brought to recover a sum of money representing 
a property loss of the plaintiff, and it is frequently 
said broadly that interest is not allowed in such 
actions. It is certainly not allowed in such actions 
as assault and battery, or for personal injury by 
negligence, libel, slander, seduction," etc. 

The measure of damage in such case seems no- 
where to include this, or be based upon this idea. 
Even in respect to injury or destruction of property, 
where the Supreme Court of the United States has 
adopted fully the prevailing rule allowing damages 
in the form of interest on value of the property, 
the rule has been limited to such injury of property 



DECEMBER TERM, 1891. 41 



Railroad v. Wallace. 



or property right as had a fixed or <;ertain value, 
and it is accordingly held in that Court that in- 
definite damages, as that resulting from infringement 
of a patent, could not bear interest until after the 
amount had been judicially ascertained. Tilghman 
V. Prodory 125 U. S., 161; Lawyers' Co-op. Ed., 
Book 19, p. 672. 

The direct question we are considering also 
came before the Supreme Judicial Court of Maine, 
and it was there held that the rule permitting 
damages equal to interest on value of property in 
cases of trespass and^ trover did not apply, and 
that interest could not be allowed upon a recovery 
for personal injury, and that, too, under a statute 
authorizing a recovery "to the amount of the 
damage sustained " (this not material, however, as 
their statute gave no more nor less right than 
exists here). Sargent v. Hampden^ 38 Maine, 581. 

The cases cited by the editors of the last edition 
of Sedgwick on Damages, sustaining the proposition 
that interest cannot be included in a recovery of 
damages for personal injuries, are from Georgia 
and Pennsylvania. Rateree v. Chapman ^ 79 Ga., 
574; Western and Atlantic Railroad Company v. 
Young, 81 Ga., 397; Pittsburgh Southern Railway 
Company v. Taylor, 104 Pa., 306. 

These cases have all been examined, and fully 
sustain the text. 

One of the cases cited to the proposition in the 
American and English Encyclopedia of Law was a 
Pennsylvania case earlier than either of those to 



42 NASHVILLE : 



Railroad v, Wallace. 



wliich we have referred. The case there cited 
{Fnsholt V. Read, 16 8erg. & R., 266), which we 
have not been able to find in libraries here, was 
evidently not one of personal injary, or else not 
consistent with later holdings of that Court. 

Indeed, the Pennsylvania Court seems hardly to 
have gone as far on that question in reference to 
allowance of interest as damages in other actions 
(X delicto as other Courts. 

In suits for the destruction of property that 
Court has held that while lapse of time may be 
looked to, it is error to jnstruct the jury that 
plaintiff is entitled to interest on such damage 
from time it occurred. Towhfihip of Plymouth v. 
Grares, 125 Pa., 24; Emerson v. Schoonmaker, 135 
Pa., 437. 

Of the other cases cited in the American and 
English Encyclopedia of Law we have examined 
those in 13 Wis., 36 X. Y., and 30 Texas. They 
all sustain the text as it is intended to be under- 
stood and as we have herein explained, and doubt- 
le.^s the other cases do so. 

To the same eftect are the cases of TAncoln v. 
Claflin, 6 Wall., 132 (Lawyers' Co-op. Ed., Book 
19, p. 106); Dyer v. Nat. St. Nac. Co., 118 U. S., 
507 (Lawyers' Co-op. Ed., Book 30, p. 153); United 
States V. North Carolina, 136 U. S., 211 (Lawyers' 
Co-op. Ed., Book 34, p. 336); Clement v. Spear, 56 
Vermont, 401 ; and cases from American Decisions 
and Reports, cited in Rapalje's Digest, Vol. I., pages 
1039, 1040, ion, under heads of "Trover" and 



DECEMBER TERM, 1891. 43 

Railroad v. Wallace. 

"When Interest may be Added," and Vol. II., 
page 1991, under head of "Interest." See also 
1 Sedgwick, Sees. 432 and 493 (8th Ed.). 

The effect and meaning of statements quoted 
from American and English Encyclopedia of Law, 
and its reference to Sedgwick on Damages, are 
made perfectly clear wlien these cases and author- 
ities herein addied ar6 examined and the generality 
of expressions limited to the purj^ose of their use 
and the class of cases being considered. Tliey were 
not dealing at till, nor intending to be understood as 
dealing, with the question of recovery for personal 
injuries, which is itself a recovery of damages pure ' 
and simple, and measured by a rule which needs no 
supplement that would add damages to damages. 

The charge and verdict were therefore erroneous 
on this point, and prejudicial to defendant to the 
extent, and only to the extent, of the injury. 
The Circuit Judge might have refused to receive 
the verdict as to interest, and the same effect may 
now follow a remitting of the interest by plaintiff 
if he elects to do so. In that event the plaintiff 
is entitled to a judgment for the $7,000, with in- 
terest from date of its rendition and cost; and 
with this modification the judgment will be affirmed. 
This was the practice adopted in the Maine case 
on this point, as well as in one of the Pennsyl- 
vania cases (135 Pa., 437, citing several others), 
and is clearly the correct rule. 

In default of such remission a new trial will 
be granted. 



44 NASHVILLE : 



Anderson ?'. Railroad. 



Anderson v. Railroad. 
{Nashville, December 17, 1891.) 

t 

1. Corporations. Registration of charter^ Collateral attack. 

The existence of a railroad company, chartered and organized under 
the general incorporation Act of 1875, cannot be "collaterally ques- 
tioned " in any legal proceeding — r. ^ , in suit to recover subscriptions 
of stock — after its completed charier has been, duly registered in the 
county where the ** principal office" of the corporation is situated^ 
although its charter has not been, as required by the Act, registered 
in other counties traversed by the proposed line of road. 

Acts construed : Acts 1875, ^h- H2. 

Case cited and approved : Brewer i>. Stale, 7 Lea, 682. 

2. Same. Same. Location 0/ principal office. 

The '* principal office" of a corporation is located in that county where 
the corporators elect to have their charter first registered and per- 
fected, within the meaning of the requirement of the Act of 1875, 
that the charter ** is to be registered in the county where the principal 
office of the company is situated." 

Acts construed : Acts 1875, Ch. 142. 

3. Same. Same. Amended charter. 

An amended charter is void, in like manner as an original charter, if it 
has not been registered as required by Act of 1875 in the office of 
the Secretary of State. 

Acts construed: Acts 1875, Ch. 142; Acts 1883, Ch. 163. 

Case cited and approved : Brewer ?'. Slate, 7 Lea, 682. 

4. Same. Stockholders^ liability for their subscriptions. Conditional contract. 

There is ordinarily an implied condition in every contract of subscription 
to the initiatory stock of a corporation that the subscriber shall not 
be required to pay his subscription unless the entire capital stock, as 
fixed, is taken. 

Case cited and approved: Read v. Memphis Gas Co., 9 Heis., 545. 



DECEMBER TERM, 1891. 45 



Anderson v. Railroad. 



5. Same. Same. Wah'er of condition. 

But this implied condition may be waived, or expressly provided against. 
It is waived, although it had originally attached, where the sub- 
scribers to the stock of a railroad company consented to pay their 
subscriptions before the entire capital stock was taken, in order that 
a portion of the proposed line of road might be put in course of con- 
struction, and this was accordingly done upon the faith of their un- 
conditional promise to pay. 

6. Same. Same. Estoppel. 

And subscribers, thus waiving this implied condition and consenting to 
pay their subscriptions unconditionally, are estopped, after the work 
has been contracted and performed upon the faith of their promise, 
to contest their liability upon the ground that the enterprise as a 
w^hole has failed for want of adequate funds to carry it out, and that 
their expectations had thus been wholly disappointed. 

7. Chancery Practice. Bill of exceptions necessary^ when. 

Evidence excluded by the Chancellor upon the hearing of a cause, ceases 
to be part of the record until restored by proper bill of exceptions. 

Cases cited and approved: Steele ik Frierson, 85 Tenn., 430; Aymett «\ 
Butler, 8 I.ea, 453. 



FROM SUMNER. 



Appeal from Chancery Court of Sumner County. 
W. C. DiSMUKBS, Sp. Ch. 

J. J. Turner for Anderson. 

George W. Boddie and C. R. Head for Eailroad. 



46 NASHVILLE : 



Anderson v. Railroad. 



LuRTON, J. A number of subscribers to the 
original stock of the defendant company have joined 
in filing this bill for the purpose of enjoining suits 
at law upon their several contracts of subscription. 

The corporation, expressly waiving all questions 
of jurisdiction, answers and submits the liability of 
complainants to the judgment of the Court, and 
by cross-bill seeks a recovery against each of them. 

The learned Chancellor was of opinion that no 
liability existed, and perpetually enjoined suits at 
law and dismissed the cross-bill. In support of 
this decree a number of propositions have been 
urged. 

First. — It is insisted that the defendant company 
has no legal existence, because its charter has not 
been registered in the several counties through 
which it is authorized to construct and operate a 
line of railway. 

The charter of the defendant - company was ob- 
tained under the general incorporation Act of 
1875. It was granted in 1883, and, as recited in 
the written parts, was "for the purpose of con- 
structing a railway from the town of Gallatin, in 
the county of yumner, to the city of Knoxville, 
in the county of Knox, through the counties of 
Sumner, Trousdale, Smith, Putnam, DeKalb, White, 
Cumberland, Roane, and Knox, over the most direct 
and practical route between the said termini.'' 
This charter, after registration in Sumner, was 
transmitted to the Secretary of State, who affixed 
his certificate of registration in his office and the 



DECEMBER TERM, 1891. 47 



Anderson v. Railroad. 



great seal of State. This certificate, together with 
the great seal, was subsequently registered ?n the 
county of original registration. Whether there has 
been any registration in any of the other counties 

• 

in the projected line of road is on the record left 
in doubt. Complainants insist that until registra- 
tion in these other counties, and particularly in 
the county of Trousdale, where work has been 
begun and where directors' meetings have been 
latterly held, that the company has no valid cor- 
porate existence. 

By Section 26 of the Act of 1875 it is required 
that the charter shall be registered in the office of 
the county where the principal office of the com- 
pany is situated; that it shall then be trans- 
mitted to the Secretary of State, who shall affix 
his certificate of registration, together with the 
great seal of State, and that these shall be like- 
wise registered "where said instrument was origi- 
nally registered." This section then declares that 
this registration shall complete the formation of 
the . company as a body-politic, and the validity 
of the same in any legal proceeding shall not be 
collaterally questioned. 

When these conditions of existence have been 
fulfilled as required, and not before, can the cor- 
poration rely upon its exemption from collateral 
attack. Brewer v. State^ 7 Lea, 682. 

All of this was done in this case. We must 
take the registration in the first instance as a 
corporate determination of the location of its 



48 NASHVILLE: 



Anderson 7: Railroad. 



''principal office." Registration in the county where 
its principal office is situated completes its identity 
as a corporation: It is true that by a subsequent 
clause in the same section it is provided "that if 
the corporation establishes agencies in any other 
county or counties, the instrument must be also 
registered in said county.'' Failure to comply with 
this provision may subject the corporation to a 
proceeding by the State for a forfeiture, but its 
corporate existence cannot be collaterally questioned 
after registration in the county of its principal 
office. Complainants are not in a situation to 
make any question as to the failure to register in 
Trousdale County. It is shown that after they 
had subscribed, that the meetings of the directors 
and stockholders were held at Hartsville. This 
cannot change the fact that the corporators de- 
termined Sumner County to be the location of the 
principal office. The subsequent opening of an 
office in that county, or the removal of the prin- 
cipal office, if permissible, cannot aflect the charter 
acquired by the registration in Sumner. 

Second. — The capital stock was fixed by the cor- 
porators, at a meeting held for purposes of organ- 
ization, at three millions of dollars. Something 
less than $50,000 of this had been taken when 
this bill was filed. Complainants' contention is, 
that until the whole of the stock is taken thev 
cannot be made liable for calls on their subscription. 

It is well settled that there is an implied con- 
dition that the amount of stock specified in the 



DECEMBER TERM, 1891. 49 



Anderson v. Railroad. 



charter, articles of assoxjiation, or contract of sub- 
scription, or fixed by the corporators when author- 
ized to settle same, shall be actually taken before 
the subscribers shall become liable. Read v. Mem- 
phis Gas Co, J 9 Heis., 545,- Morawetz on Private 
Corporations, Sec. 156; Beach on Private Corpora- 
tions, Sec. 585. 

This implication may, however, be rebutted by 
the terms of the charter, or the provisions of the 
enabling Act, articles of association, action of stock- 
holders or corporators fixing capital, or by the 
conditions of the contract of subscription. So a 
subscriber may waive such condition, and this 
waiver may be either express or implied. A 
waiver will generally be implied if the subscriber 
consents to the letting of contracts, the creation 
of debt, or the doing of any corporate act involv- 
ing the necessity of calling in the subscribed stock, 
unless the charter expressly forbid the doing of 
any corporate act until tlie requisite capital is 
taken. Morawetz on Private Corporations, Sec. 
156; Beach on Private Corporations, Sec. 535, and 
authorities cited. 

There is nothing in the charter, or resolution 
fixing amount of capital stock, or in the original 
contract of subscription, rebutting the usual implied 
condition and taking their contract of subscription 
out of the general rule of law. But after the 
original su-bscription had been made, a majority of 
the subscribers entered into the following agreement: 

"For the purpose of enabling the Middle and 

4—7 p 



60- NASHVILLE: 



Anderson v. Railroad. 



East Tennessee Central Railroad Company to put 
their road under construction from the Chesapeake 
and Nashville Railroad to Hartsville, Tenn., the 
undersigned subscribers to the capital stock of the 
said Middle and East Tennessee Central Railroad 
Company agree that they will pay their said sub- 
scriptions as fast as the work progresses; provided, 
that not more than twenty-five per cent, shall be 
called for in any one month." 

Upon the faith of this agreement the directors 
let out a contract for the construction of the very 
part of the projected line contemplated by this 
agreement, being eleven and one-half miles, and 
covering the route between the Chesapeake and 
Nashville road and the town of Hartsville. The 
contractors were shown this supplementary agree- 
meirt, and upon the faith of it accepted a contract 
to construct so much of the road as was agreed 
to by that paper, and had completed about seventy 
per cent, of the work*when this suit was begun. 
The obvious effect of assenting to this agreement 
was to w^aive the implied condition that the whole 
of the stock should be raised, and was an un- 
doubted agreement that the work should begin at 
the Chesapeake and Nashville Railroad instead of 
the town of Gallatin. Some of complainants did 
not sign this agreement, and are not shown to 
liave assented, by votes or otherwise, to the com- 
mencement of work or the creation of debt. There 
is proof that at a meeting of subscribers it was 
unanimously resolved that the directors should let 



DECEMBER TERM, 1891. 51 

Anderson v. Railroad. 

»       I 111 ■»■ .-IIIM I - -■»-■■■—- 111 .. — - I ■■_ ■-  -  I   , _■ , 

out a contract for that part of the liiLe between 
Gallatin and Carthage; but it is not shown that 
the complainants, who. failed or refused to sign 
the agreement above set out, in any way partici- 
pated in this meeting, or that their stock was 
represented. We therefore decide that such of 
complainants as did not sign the agreement assent- 
ing to the beginning of work between the Chesa- 
peake and Nashville Railroad and the village of 
Hartsville are not now liable to have their stock 
called. The remainder ot complainants have ex- 
pressly agreed to the beginning 'of construction, 
and to the payment of their stock as work pro- 
gressed, and as to them this implied condition has 
been waived. . • 

Third, — Certain other positions remain to be 
considered as to those of complainants who have 
waived the condition that the full capital stock 
should be raised. 

It is said the defendant company is now in- 
solvent, and that the original scheme for a route 
from Gallatin to Knoxville cannot be carried out, 
and that the enterprise has been dwarfed to a 
short link, beginning eight and one-half miles from 
Gallatin and terminating at Hartsville. It is urged 
that the charter provided for a road beginning at 
Gallatin, and not at a point on the Chesapeake 
and Nashville road eight and one-half miles from 
Gallatin, and that it should terminate at Knoxville, 
and not at the town of Hartsville; that com- 
plainants are business men and property owners in 



52 NASHVILLE : 



Anderson v. Railroad. 



Gallatin, and that the scheme into which they 
entered contemplated a great through road passing 
tlirough the coal-fields of the Cumberland Mount- 
ains, and connecting their city with other lines of 
railway, and with the flourishing city of Knoxville. 
They further insist that, to procure their subscrip- 
tion, the oflicers and agents of the company repre- 
sented that no call would be made upon their 
subscriptions until the company had secured a con- 
tract whereby if it should build to Carthage it 
could consolidate with a road thence to Knoxville 
to be built by i, Mr. Craw^ford, and that no call 
should be made until the Chesapeake and Nash- 
ville road was constructed into Xashville, and a 
running arrangement made by which the trains of 
the defendant company should be carried into Nash- 
ville over the tracks of the Chesapeake and Nash- 
ville; that none- of these things have been do^ie, 
or are now possible; and that, therefore, they 
should not be held liable. The company, for 
answer to the objection as to the beginning point 
of the road under construction, interpose an alleged 
amendment to the charter fixing the beginning 
point at the Chesapeake and Nashville Railroad 
near Gallatin. This amendment was obtained in 
1884, upon application of the directors as provided 
by the Act of 1875 as amended by the Act of 
1883, Chapter 163. It was duly registered in 
Sumner County, but appears never to have been 
registered with the Secretary of State. This neg- 
lect makes the amendment, even if otherwise valid, 



DECEMBER TERM, 1891. 53 



Anderson v. Railroad. 



ineftectual and void. An amendment must be 
registered as the original^ and, until this is done, 
is subject to the same objection which renders 
void a defectively registered charter. Brewer v. 
State, 7 Lea, 682. 

Another amendment was obtained pending this 
suit, changing the termini to the 'Chesapeake and 
Nashville Railroad near Gallatin and the town of 
Carthage, in Smith County. This amendment seems 
to have been in all respects properly registered. 
By it the capital stock was reduced to $350,000. 
This reduction does not help the case, inasmuch 
as it is not shown that even this has been taken, 
to say nothing of other objections not necessary to 
consider. Without passing upon the validity of 
this second amendment, we are of opinion that, 
whether valid or invalid, the complainants are 
estopped to question their liability as subscribers. 
They expressly agreed that, to enable the company 
to put under construction the line between the 
Chesapeake and Xashville Railroad and town of 
Ilartsville, they would pay their subscriptions as 
that work progressed, in calls of twenty-five per 
cent, monthly. 

It is too late now to say that the line has not 
been begun at Gallatin, or that it cannot be carried 
beyond Harts ville. We know of no reason why 
this company might not have begun the work of 
construction at any point on the line between 
Gallatin and Knoxville. If its finances should 
prove insuflicient to connect the part so constructed 



54 NASHVILLE : 



Anderson v. Railroad. 



with the charter termini, this ought not in law or 
equity relieve the subscribers who assented to the 
beginning of so great an enterprise upon so in- 
sufficient a capital. 

The representations made to induce subscriptions 
were all made antecedent to the written contract 
of subscription,- and upon this ground, as tending 
to contradict the w^ritten contract, were excluded. 
This ruling was doubtless correct; but, however 
this may be, the excluded evidence is not properly 
a part of the record before us. 

When evidence offered in a chancery cause is 
excluded ui)on objection, the correctness of the 
ruling cannot be challenged upon appeal unless 
the excluded evidence be made a part of the 
record by bill of exceptions. This has been re- 
l>eatedly so ruled. Steele v. Frierson^ 85 Tenn., 
430; Aymett v. Butler, 8 Lea, 453. 

There is a paper in the transcript styled a bill 
of exceptions. But this is not signed by the 
Chancellor as a bill of exceptions. Whether it be 
a memorandum on a deposition or a decree inter- 
locutory does not appear. But, however this may 
be, it does not purport to make the excluded 
evidence a part of the record, and simply recites 
that certain questions and answers referred to by 
numbers were objected to and excluded. At most, 
this can only operate to exclude and not include 
this evidence. 

The decree of the Chancellor must be reversed 
as to all of the complainants except Anderson, 



DECEMBER TERM, 1891. 55 

Anderson v. Railroad. 

Miller, and Thompson. As to them it will be 
modified so as to enjoin suits at law until the 
capital stock settled by the corporators has been 
raised. The original bill will be dismissed as to 
all of the other complainants. The railway com- 
pany, under its cross-bill, will take a decree, in 
accordance with the prayer of that pleading, 
against each defendant thereto save Anderson, 
Miller, and Thompson, for the amount of their 
several subscriptions alleged to be due and un- 
paid, with interest from filing of cross-bill. One- 
third of the costs will be paid by defendant rail- 
way company, and remainder by defendants to 
cross-bill against whom decrees are rendered. 



56 NASHVILLE : 



Railroad v. North ington. 



Railroad v. Xorthington. 



{Nashville. December 19, 1891.) 



I. Negligence. J^roo/ of. 

The proof makes out a prima facie case of negligence, where it is shown 
that plaintiff's intestate, while in the employ of the defendant rail- 
road company working as a track hand under the immediate orders 
and supervision of a foreman or section-boss, sustained injuries by 
reason of being thrown against the lever of a moving hand-car, in 
consequence of a collision between a box negligently arranged on 
the hand-car by the foreman, and the platform of a depot. 



2. Same. Burden of proof 

The burden is upon the defendant company to rebut the inference of 
negligence fairly deducible from these facts. 

Case cited and approved: 13 Peters, 181. 



3. Same. Charge of Court as to cause of death. 

In suit for death caused by negligence there was proof of deceased's 
injury by defendant's negligence, and that he died about one month 
thereafter. There was evidence tending to show that the death re- 
sulted from this injury, and other evidence tending to show that it 
resulted from independent pre-existing disease. 

' Held: It was not error for Court to charge, upon these facts, that de- 
fendant was liable if the death resulted from the injury, but not liable 
if it resulted from the disease ; and that the injury must be deemed 
the cause of the death, if, co-operating with the disease, it hastened 
the death, but not, if it merely aggravated the disease without 
hastening death. 



DECEMBER TERM, 1891. 57 

Railroad v. Northington. * 

Cases cited: Fisher v. State, lo Lea, 156; 2$ Am. & Eng. R. Cases, 
327; 18 Id., 220; 50 Mich., 163. 



FROM MONTGOMERY. 



Appeal in error from Circuit Court of Mont- 
gomery County. A. II. Munford, J. 

West & Burney for Railroad. 

ft 

Leech & Savage and Thos. L. Yancey for North- 
ington. 

Snodgrass, J. The defendant in error sued and 
obtained a verdict for $5,000 damages of the Louis- 
ville and Nashville Railroad Company for the neg- 
ligent killing of her husband. Pending motion for 
a new trial, $2,000 of this amount was remitted, 
and judgment was rendered for the plaintiff for 
$3,000. The railroad company appealed. 

Several errors are assigned, the first being that 
there was no evidence of negligejice. The acci- 
dent occurred on a hand-car running from a point 
north of Hampton Station, in Montgomery County, 
to a point south of said station, where the hands 
using the car were to resume work after dinner. 



58 NASHVILLE : 



Railroad v. Northington. 



this being just before. The foreman in charge of 
the work ordered the men (of whom Henderson 
Northington, husband of plaintiff, was one) to get 
on the hand-car and go to the place indicated. 
They did get on and set out for it, pushing before 
tl)em a truck or push-car containing two dump- 
beds or boxes, as was the custom in such removals 
from place to place for work. These were empty, 
and there was no way to fasten them. The fore- 
man stood upon them, with a foot in each, thus 
holding them on. The hands rode on the car and 
worked the levers propelling it. In attempting to 
pass the station platform one of these boxes struck 
it and was thrown under the car, stopping it sud- 
denly. This threw deceased against the lever and 
injured his right side. Of this injury it is claimed 
he died. 

This, of itself, made out a case of negligence. 
If the foreman allowed the boxes to be so placed 
as to strike a platform on the road and bring 
about this injury, it devolved upon the company 
to show that it was unavoidable, or not the re- 
sult of negligence; but, in addition to this, it is 
proven that the foreman said at the time of the 
accident that he saw the dump box had slipped 
or was slipping, but did not think it would strike 
the platform, thus letting the men, without warn- 
ing, take the risk of a danger he foresaw and 
speculated about. The argument for the company 
is that the proof fails to show that the foreman 
could have prevented the box slipping, or that it 



DECEMBER TERM, 1891. 59 



Raiiroad v. Northington. 



did not slip suddenly when the car passed over a 
point in the rails at the place of the wreck. 

The car having struck, or dump-box thereon 
having struck, the platform, this was a circum- 
stance showing negligence (as the overturned coach 
in Sto/ces v. Salstonstall, 13 Peters, 181), and made 
out a prima facie case, which it devolved- upon 
defendant to meet. This it not only did not do, 
but predicates its reliance for reversal on weakness 
of plaintiff's additional affirmative evidence of neg- 
ligence. It was the dwty of the foreman repre- 
senting the company to see that it was so placed 
that it would not strike the platform naturally; 
and when it did strike, it then devolved upon 
the company to sliow that this was not the result 
of any negligence. The onus was not upon the 
plaintift' to show why it struck, after having shown 
that it did strike. Tlie reason, if there were any 
proper one therefor, should have been shown by 
the defendant, to remove the presumption of neg- 
ligence arising from the fact of collision. The 
'case referred to in 13 Peters has been often fol- 
lowed in this State. 

The remaining error to be noticed in the num- 
ber assigned is that on the qualification of a prop- 
osition submitted by defendant to the Court as 
instruction to the jury. 

Though the plaintiff's intestate died about a 
month after the injury, and there was evidence 
to sustain the theory that his death was the 
direct result thereof, there was evidence tending 



60 NASHVILLE : 



Railroad v. Northington. 



to show that he died of galloping consumption, 
of which he was probably, though not very visibly, 
aftected when injured. 

In this condition of the evidence the Court was 
asked to charge as follows: "If you find that the 
company was negligent, and deceased was injured 
by sirch negligence, then, did the injury cause his 
death or did he die of some disease? If he died 
of the injury — and by that is meant the injury 
produced the death, or produced a disease which 
resulted in death, or so Aveakened the powers of 
deceased as rendered him unable to resist a dis- 
ease of which he might otherwise have recovered, 
or with which he might have lived an indefinite 
time — then plaintiff should recover. But if de- 
ceased already had a fatal disease, from which 
there was no hope of recovery, and his death was 
inevitable from that disease in a short time, and 
the injury was slight and of such a character as 
to simply aggravate the disease, and he died of 
the disease and not of the injury, then plaintiff 
cannot recover at all, for this is a suit for the- 
death of deceased." 

The Court gave this instruction to the jury, 
with this addition: "This is the law, but if the 
death was hastened or occurred sooner by reason 
of the injury than it otherwise would, then the 
injury was the cause of the death." 

It is objected that the addition of the Court to 
the request submitted is not the law; and a case 
to the contrary in terms, if not in eftect, as to 



DECEMBER TERM, 1891. 61 



Railroad v. Northington. 



"hastening"' the death, is cited in 25 American 
and English Railroad Cases, 327. The case is from 
Missouri, and is that of Jackson v. The St. Louis, 
Iron Mountain and Southern Railroad Company. 
There the evidence showed that a mortally wounded 
man had been suffered to be placed upon a train 
and removed from the place where he was in- 
jured, under circumstances »of at least slight negli- 
gence on the part of the conductor. The Court 
charged that ''if the conductor was informed of 
the condition of the wounded man, and knew he 
was being taken against his will, and consent of 
plaintiiF (his wife), and that he was so taken and 
transported from Dexter to Clay County, thereby 
causing or hastening his death, the jury should 
find for plaintiff.'^ He further refused, on request 
of defendant, to charge "that if the wrongful act 
only hastened the death of Jackson, and was not 
the cause of same, you must find for defendant.'* 

The Supreme Court of Missouri, on appeal, held 
that the giving of the first and refusal of second 
instruction quoted was error. 

Under the facts of that case, with the brief 
and summary propositions standing as they do, 
the case may be right — it is not necessary to 
determine that question — but the charge we have 
here is not the same. It presents in the propo- 
sition submitted by the Circuit Judge all the 
qualifications which make the use of the term 
"hastened" objectionable in the Missouri case. 
He had already said that " if the injury was 



62 NASHVILLE : 



Railroad v. Northington. 



alight, and of such a character as to simply 
aggravate the disease, and he died of the disease 
and not of the injury, then plaintift* cannot re- 
cover." He now adds, "but if the death was 
hastened or occurred sooner by reason of the 
injury" — in other words, if the death was hastened 
or occurred by reason of the injury, and sooner 
than deceased would have died of the disease, then 
the injury was the cause of the death — that is, of 
the death when it occurred at another and difter- 
ent time than death would have occurred from the 
disease. This must be true, or there could be no 
cause of an earlier death than that which, nothing 
else intervening, would have produced a later one. 

A man might be suftering from an incurable 
disease, or a mortal wound, with only two days 
to live when a negligent wrong-doer inflicted upon 
him an injury which in his condition of debility 
took his life or developed agencies w^hich destroyed 
him in one day, and yet the latter, wrong be in 
a legal sense the cause of his death, though it 
only hastened that which on the next day would 
have inevitably happened. 

We think the proposition submitted by counsel, 
and qualified by the wise and judicious view of 
the Court, an admirable statement of the true 
rule on this very d*elicate question. The Supreme 
Court of Missouri said it found no precedent lor 
the decision made in the Jackson case, and there 
are, confessedly, few reported cases that touch \x\\o\\ 
the question. Those supposed to present an an- 



DECEMBER TERM, 1891. 63 

Railroad z/. Northington. 

 *  

tagonistic view are embodied and cited iu 1 Sedg- 
wiqk on Damages, 160 (8th Ed.) ; Railroad Co. v. 
Kemp, 18 American and English Railroad Cases, 
220 ; Beauchampy Adm'r, v. Mining Co., 50 Mich., 
163. And to the same eftect is the assumption 
(for the point did not exactly arise for decision) 
in this State in the case of Fisher v. State, 10 
Lea, 156. 

It is sufficient for the purpose of this opinion 
to say that, treating it from the stand-point of an 
original proposition, we are entirely content with 
the view of it embodied in the instruction sub- 
mitted, as qualified by the Court upon the facts 
of this case. That qualification upon the proposi- 
tion put, removed here in fact, and will remove 
hereafter in precedent, all danger that this case 
will be authority or treated as authority for hold- 
ing that any slight aggravation of a disease is a 
" cause of death within the meaning of the statute.'' 

 

The Circuit Judge had already charged upon the 
propriety of reducing damages according to the 
expectation of life, and had justly exercised his 
judgment and discretion in requiring a remission, 
if the judgment was to stand, there being no 
grossly negligent or wanton conduct in bringing 
about the injury. 

We are satisfied with the judgment, and it is 
affirmed with cost. 



64 NASHVILLE : 



Vaughn :-. Merndon. 



Vaughn v. Herndon. 
{Nashville. December 19, 1891.) ' 

1. Boards OF Trade. Charter ami by-la^vs of apprm'ed. 

The charter of the Clarksville Tobacco Board of Trade, issued under 
the general incorporation law of 1875, and the by-laws adopted by 
that institution pursuant to its charter, authorizing and requiring the 
settlement of busine?^s differences among its members by committees 
of arbitration appointed for that purpose, is approved by the Court 
as "wise legislation, that will operate to prevent much needless and 
expensive litigation, as well as promote the welfare of commerce, if 
correctly enforced." 

Act construed: Acts 1875, Ch. 142. 

2. Arbitration and Award. By committees of boards of trade binding. 

And the final award of the constituted committees of arbitration duly 
appointed by such board of trade upon matters of dispute within 
their jurisdiction, if fairly made, is conclusive upon the parties. 

3. Same. Same. Rejection of eiidence. 

And the rejection, upon reasonable grounds, of evidence offered before 
the committee affords no just ground of complaint against the award. 
The committee must, of necessity, determine as to the competency 
and weight of the evidence. 



FROM MONTGOMERY. 



Appeal in error from Circuit Court of Mont- 
gomery County. A. H. Munford, J. 



DECEMBER TERM, 1891. 65 



Vaughn 7'. Herndon. 



Leech & Savage for Vaughn. 



Wm. M. Daniel for Herndon. 



TuRNBY, Ch. J. The Clarksville Tobacco Board 
of Trade was chartered by Section 1, Chapter 142, 
Acts of 1875. Pursuant to its powers the board 
adopted by-laws. Among them: 

'*Sec. 10. That in addition to the officers of the 
board, the following standing committees shall be 
appointed and elected : 

"The president shall appoint every month a 
committee of arbitration consisting of two members, 
one of whom shall be a warehouseman, the other 
a buyer; these two shall select a third person, to 
whom shall be referred all questions of dispute 
between members in regard to tobacco matters, 
and all questions of claims for damages upon hogs- 
heads of tobacco claimed or supposed to be un- 
fairly sampled. This committee shall have power 
to order resamples of said disputed hogsheads, or 
to employ some responsible person to supCl'intend 
said resampling, whether here, in New York, 
Baltimore, New Orleans, or any foreign markets, 
if they have just reason to believe that the unfair 
representation of the hogshead did not occur in 
the sample drawn in this market— or shall order 
back the hogshead to Clarksville for examination, 
upon written demand of the seller of the same. 

"If the buyer's claim is substantiated, the seller 

shall pay the assessed damages and all expenses 
5—7 p 



66 NASHVILLE : 



Vaughn v. Ilerndon. 



accruing from the error, including express or freight 
charges, and expenses for resampling. If the claim 
proves unfounded in justice, the buyer shall boar 
all expenses as above. No trivial claims, or claims 
unfounded in justice, shall be entertained or acted 
upon by the committee. 

"Sec. 11. The board shall, at their annual meet- 
ing, or as soon thereafter as possible, elect to 
serve until the first of November following a 
committee of appeal, consisting of five members, 
one of whom shall be one of the vice-presidents 
of the board, who shall act as chairman of said 
committee. To this committee any member or 
members may appeal who may feel aggrieved or 
injured by any decision of the committee of arbi- 
tration. Three members shall constitute a quorum 
of this committee, though all five shall meet upon 
written request of either of the disputants. The 
committee of appeal shall have power to confirm 
the decision of the committee of arbitration, or to 
reverse the same, and make new decision on tlie 
matter "in dispute, and shall have all the powers 
granted to the committee of arbitration. 

"All decisions of the committee of appeal shall 
be considered final, and must be followed bv 
prompt settlement by the losing party. 

" Should the losing party appeal to the Courts 
of law or equity, against the decision of the com- 
mittee of appeal, then said decision shall be sus- 
tained by the whole Tobacco Board of Trade to 
the extent of all the funds in the treasurv and 



DECEMBER TERM. 1891. 67 

Vaughn v. Herndon. 

an assessnieut upon each member, not exceeding 
ten dollars per annum. 

" Sec, 12. If any member of the committee of 
arbitration should be interested, either as buyer or 
seller, in * any claim presented before it, he shall 
notify the president, who shall appoint another 
member to take his place on the committee of 
arbitration to act on said claim; and should any 
member of the committee of appeal find that he 
is interested in the claim presented before it, or 
if he should have happened to have been on the 
committee of arbitration which acted on said claim, 
he shall notify the president, who shall appoint 
some other member to act in his place on said 
claim." , 

In August, 1890, plaintifts bought a hogshead 
of tobacco from the Grange Warehouse, at Clarks- 
ville. Claiming that the sample did not properly 
represent the tobacco, they made demand for re- 
clamation for the loss, sending back from Louis- 
ville, Ky., the sample by which they had pur- 
chased, and also a sample said to have been taken 
from the hogshead of tobacco by Inspector Greeu. 
The latter sample was tied by a string and with- 
out an inspector's seal, but was accompanied by the 
inspector's certificate. These were put before the 
arbitration committee, who made an allowance. 
The warehouse appealed to the committee of ap- 
peals. That committee gave their judgment as 
follows : 

"The committee refuses to recognize samples 



68 NASHVILLE : 



Vaughn v. Hcrndon. 



offered for reclamation coming from places or 
markets provided with a State or board inspector 
not bearing tlie inspector's seal. These samples do 
not bear the seal of the inspector* When reclama- 
tions on parts or parcels of hogsheads are claimed, 
properly sealed samples are required, together with 
the certificate of the inspector as to quantity." 

No application was made for leave to make 
additional proof or supply the want in that offered. 

The judgment of the committee of appeals was 
a dismissal of the claims for want of proof to sus- 
tain it. 

The matter remained in this condition from 
September 17, 1889, to January 24, 1890, when 
this suit was brought. 

The action of the committee was authorized by 
the charter and by-laws of the corporation, and 
was an arbitration of the matters in dispute, sub- 
mitted to it by the parties in interest, and, so far 
as this record discloses, was conducted with fairness 
and in good faith. 

The tribunal was necessarily judge of the com- 
petency and value of the evidence offered. Its 
ruling was proper, and in the interest of honesty 
and fair dealing. It was right to hold that testi- 
mony tendered for its consideration should bear 
such marks of authenticitv as would entitle it to 
prima facie credit. 

The provisions of the charter and the by-laws 
thereunder are wise legislation, and will operate to 
prevent much needless and expensive litigation, as 



DECEMBER TERM, 1891. 69 



'■*■' ^y ■^^^■ f> ' a »< ^ * mi j ^T  -^>^|^u-g 



Vaughn v, Herndon. 



well as promote the welfare of commerce, if cor- 
rectly enforced. 

The Circuit Oourt held the parties bound by 
the award. . 

The judgment is affirmed. 



70 NASHVILLE : 



Pitt, Adm'r, v. Poole. 



Pitt, Adm'r, i\ Poole. 
{Nashville. December 22, 1891.) 

1. Fraudulent Conveyance. Impeachment of by grantor' s administrator. 

Proof of debts essential. 

In administrator's suit, brought after suggestion of insolvency of estate, 
to set asid&his intestate's fraudulent conveyance of lands, and subject 
them to payment of debts, if the existence of indebtedness is denied, 
the complainant is not entitled to relief unless he shows, by satis- 
factory evidence, that there are subsisting and unpaid debts against 
the estate. 

Code construed: §3241 (M. & V.); §2395 (T. & S.). 

Cases cited: Boxley z'. McKay, 4 Sneed, 289; Spencer v. Armstrong, 
12 Heis., 707; Armstrong r'. Croft, 3 Lea, 191 ; Lassiter v. Cole, 8 
Hum., 621. 

2. Same. Same, Same, 

And if the conveyance was not fraudulent in fact, but merely voluntary, 
then it is essential that complainant prove the existence of the debts 
not only at the intestate's death, but also at date of the deed. 

3. Same. Same. Same, 

It is- not sufficient proof of the existence of debts in such suit, without 
more, for the administrator to state in his deposition that ** there has 
been filed with me as administrator * *  claims to the amount 
of $1,803.90, all of which are correct so far as I am able to judge." 



FROM MONTGOMERY. 



Appeal from Chancery Court of Montgomery 
County. Jordan Stokes, Sp. Ch. 



DECEMBER TERM, 1891. 71 

Pitt, AdmV, V. Poole. 

Lbech & Savage for Pitt, Adm'r. 
Wm. M. Daniel for Poole. 

LuRTON, J. Complaiiiaut, as administrator, files 
this bill to reach- certain real estate, and subject 
same to the satisfaction of the debts of his intes- 
tate, upon the ground that it had been conveyed 
by the decedent in fraud of his creditors. The 
bill charges that the insolvency of the estate had 
been suggested; that the personal property which 
has come to his hands has been sold, realizing 
only some five hundred dollars; that the debts of 
the intestate amount to about eighteen hundred 
dollars, '* about all of which has been filed with 
complainant." It then alleges that his intestate 
had, in fraud of his creditors, conveyed the property 
in question to the defendant, who was his sister; 
that "at the time of this convevance said intestate 
was indebted to the above amount, and to the 
same parties * * * and was wholly insolv- 
ent, and so known to be to defendant, A. R. 
Poole, and that said conveyance was made to defeat 
and defraud creditors, and so known to defendant, 
and was in fact without anv consideration what- 
ever, though the deed recites one of five hundred 
dollars." 

Defendant demurred and answered. In her 
answer she denies* all of the material allegations 
of the bill, and especially that her brother, the 
intestate, owed any debts at his death, and calls 



72 NASHVILLE : 



Pitt, Adm'r, 7'. Poole. 



for proof of same. She denies that the convey- 
ance was fraudulent or without consideration. The 
effect of this answer was to put the complainant 
to the proof of every allegation necessary to make 
out his case. For the purposes of this case it 
may be assumed that complainant's proof does 
show that the conveyance was a voluntary one, 
intended to secure to a dependent and widowed 
sister, with a large family, a small home. 

The proof shows that this conveyance w^as made 
about one week before the death of the intestate. 
There is, however, no proof that at the time of 
the conveyance the grantor was indebted to any 
extent. The allegation of the bill that he was 
indebted to insolvency at the time of the convey- 
ance is therefore not established. Neither is there 
any sufficient proof of the existence of debt at 
decedent's death. The only proof offered to es- 
tablish indebtedness is that of complainant himself, 
who states in his deposition that "there has been 
filed with me, as administrator of B. F. Madule, 
claims to the amount of $1,803.90, all of which 
are correct, so far as I am able to judge." 

At the common law an administrator could not 
impeach the conveyances of his intestate. He 
was regarded as the representative of the intes- 
tate and estopped by his deed. 8 Hum., 621. 
But by the Code, §3241 (M. & V.), an action 
is given to an executor or administrator " as the 
representative of the creditors of an insolvent 
estate," to subject property by bill which had been 



DECEMBER TERM, 1891. 73 

— — I 1,1 .fij'ir-'- -^ 

Pitt, Adm*r, v. Poole. 

fraudulently conveyed, the proceeds to be dis- 
tributed pro rata among the creditors. It has 
been held that to sustain such a bill it was 
essential that it should show that the insolvency 
of the estate had been already suggested, Boxleu 
V. McKay, 4 Sneed, 289. 

The , right of a creditor of a deceased debtor to 
file a bill and subject property fraudulently con- 
veyed does not depend on this statute. Such a 
creditor may maintain his bill against a fraudulent 
vendue without a judgment against his debtor or 
his representative, and without joining the admin- 
istrator as a party. Spencer v. Armstrong^ 12 Heis., 
707; Armstrong v. Croft, 3 Lea, 191. 

But when an administrator under this statute 
files a' bill against such a vendee, he does so as 
the representative of the creditors, and he must 
show that there are such creditors whom he may 
represent. It is not enough to show that claims 
have been filed with him, and that, so far as 
he knows, they are correct. The defendant lias 
a right to contest the existence of creditors en- 
titled to be represented by the administrator, and 
when this fact is put. in issue by a denial of an 
allegation to that effect, the burden is upon the 
complainant to establish by competent evidence this 
essential fact to a recovery. If claims had been 
reduced to judgment, or allowed by the clerk of 
the County Court as uncontested, this might be 
sufiicient. But that claims have been filed with 
an administrator, correct, *'8o far as he can judge," 



74 NASHVILLE : 



Pitt, Adm'r, f, Poole. 



is not* enough where the existence of valid debts 
is disputed. Neither can complainant recover with- 
out showing indebtedness at date of conveyance. 
That at date of intestate's death he wns indebted' 
is not enough; noii constat that this indebtedness 
was not made after the conveyance. 

Complainant's proof does not support his case. 
The decree of the Chancellor must be reversed and 
the bill dismissed. 



DECEMBER TERM, 1891. 75 



Leneave v. McDowell. 



Leneave V. McDowell. 



{Nashcille. January 5, 1892.) 

I. Assignment. Assignor'' s liability upon comlitional guaranty or warranty. 

The a5wigiior's liability under contract of assignment of a non-negotiable 
chose, in action will be enforced by the Courts with such conditions 
and limitations as the parties themselves have agreed upon ; and if 
that liability is made dependent by the contract, express or implied, 
of the parties; upon the exercise of due diligence on the part of the 
assignee in enforcing collection of the chose in action, there can be 
no recovery by the assignee against the assignor for any loss sustained 
unless such diligence is shown, or sufficient excuse for the neglect. 

Cases cited and approved: TuUy ?. Modge, 3 Hum., 74; Cates 7'. 
Kittrell, 7 Heis., 609; Williams v. Miller, 2 Lea, 409; Jones v, 
Greenlaw, 6 Cold., 342. 



2. Same. Same. Case in judgtnent. 

McD., an attorney, having a declared lien upon his client's land for a 
$1,600 fee, agreed, after the client's death, with his executor and 
infant heirs to accept, in full satisfaction of his fee, a portion of the 
land and release his lien upon the remainder. It was further stipu- 
lated that proper legal steps should be taken to carry out this con- 
tract and perfect McD.'s title to this portion of the land. There was 
pending at date of this agreement a suit involving the title of McD.*s 
client or his heirs to an undivided seven-eighths of the entire tract. 
Complainant became owner of McD.'s interest under this contract 
by an assignment which transferred **all his right, title, claim, and 
interest in and to said land and fee," with the further stipulation 
that in the event the assignee failed to get the land, and should also 
lose all or any part of the $1,000 fee assigned, then McD. should 
make up the loss 10 the extent of $700 only. McD.'s client and his 
heirs lost an undivided seven-eighths of the entire land by said suit, 
and surrendered possession thereof. No steps were ever taken to 
perfect McD.'s title to the portion taken in satisfaction of his fee. 
Complainant, without taking any steps whatever to collect said fee, 
or to enforce the lien upon said land, brought suit against McD. to 



76 NASHVILLE : 



Leneave r-. McDowell. 



recover the $700 under his said warranty. It is not shown that the 
client's estate is insolvent, or that the remaining one-eighth of the 
land is insufficient to satisfy this fee. 

Held: The suit cannot be maintained. McD.'s guaranty was not abso- 
lute, but conditional upon the assignee's first taking all proper steps 
and exercising due diligence to collect the fee and save himself from 
loss. This fact is not proved. 



3. Conditional Rklease. Effect of non-compliance with condition, 

McD. having released his lien upon the remainder of the land, upon 
consideration and condition that he should be invested with perfect 
title to a specified portion of the tract, the effect of a failure of this 
condition was to restore his lien upon his client's interest in the 
entire tract. 



4. Statute of Limitations. Administrator' s statute does not bar enforce- 
ment of liens. 

Although recovery of a debt against an estate is barred by the admin- 
istrator's statute, the enforcement of a lien upon lands by which the 
debt is secured is not thereby barred. 

Case cited and approved: Martin v. Neblctt, 86 Tenn., 383. 



FROM MAURY. 



Appeal from Chancery Court of Maury County. 
A. J. Abbrnathy, Ch. 

W^'ebster & Taylor and Hughes & Hatcher for 
Leneave. 



DECEMBER TERM, 18!)1. 77 

Leneave v. McDowell. 

SouTHALL & Smiskr and W. S. Fleming & Son 
for McDowell. 

LuRTON, J. The bill alleges the breach of a 
contract of " warranty and guaranty," contained in 
an instrument which designates the thing trans- 
ferred and assigned as an interest " in said fees 
or land, as the case may be." This assignment 
is in these words : '' This agreement witnesseth : 
Whereas, by agreement of compromise in the cause 
of McDowell and Webster and Cooper et al, v. J. 
P. Brown it was agreed that complainants in said 
bill should have certain therein described lands in 
full satisfaction of fees in said cause of J. P. 
Brown v. II. A, Brown et aL, the amount of fees 
being stipulated in said agreement, the said agree- 
ment is, by further agreeing thereto, placed in the 
hands of W. J. Embry. Said agreement is here 
referred to for description of the land and desig- 
nation of amount of fees. Now, Thos. L. Porter 
is desirous of purchasing the interest of E, C. Mc- 
Doicell in said' fees or land^ as the case may be. 
It is therefore agreed that for the consideration of 
$700 said McDowell sells or assigns and conveys 
to Thos. L. Porter all his right, title, claim, and 
interest in and to said land and fee. In the event 
the Court does not confirm the sale agreed upon 
as per agreement in the hands of W. J. Embry, 
and makes any reduction in the fee therein agreed 
uj)On — that is to say, in the event said Porter does 
not get the land therein described^ and loses all or 



78 NASHVILLE : 



Leneave r. McDoA'ell. 



any part of the amount of fee agreed upon — the 
said McDowell icarrants and guarantees to said 
Porter, to the extent of $700, to make up his 
proportionate part of said loss." * * * 

The italics are ours. It is manifest that with- 
out we look to the paper referred to as being in 
the hands of W. J. Embry, no intelligent meaning 
can hjd attached to this transfer and guaranty. 
Unfortunately, .this has been lost, and for its con- 
tents we are compelled to rely upon oral evidence. 
From this, as well as from other evidence com-« 
petent as showing the circumstances surrounding 
the transaction, we gather these facts: 

First, — E. C. McDowell, the defendant, and others 
were associated as counsel for John P. Brown in 
a suit involving the title to some 1,100 acres of 
land, of the value of from forty to fifty thousand 
dollars; that a decree was obtained recovering this 
land for their client, and that a lien was declared 
in March, 1880, upon 500 acres of this land to 
secure reasonable attorney's fees. 

Second. — After this recovery a petition was filed 
in the same cause bv certain non-resident de- 
fehdants, against whom a decree j:>ro confesso had 
been taken, seeking to re-open the case and to 
defend the suit upon its merits. Pending this 
petition, a bill was filed by the gentlemen whose 
fees were thus secured against J. P. Brown to 
settle the amount of these fees and to enforce the 
lien reserved to secure same. Pending this suit, 
John P. Brown died. After his death, and while 



DECEMBER TERM, 1891. 79 

Leneave v, McDowell. 

the petition of the non-resident defendants was 
still pending, the agreement referred to. in the 
assignment above set out was executed and left 
in possession of Embry, the executor of J. P. 
Brown, as a mutual depositary. 

Third. — From the evidence relied upon as show- 
ing contents of this lost paper we find that by 
this paper the fees due to Mr. Brown's counsel 
for services rendered in original case, and to be 
rendered in the matter of the pending petition, 
were fixed at the sum of $4,000, with some in- 
terest added, and that of this sum $1,000 was due 
to Defendant McDowell. To pay these fees it was 
provided by this agreement that one hundred , and 
thirty acres, stated by the witness to have been 
described in the lost paper, and being a part of 
the five hundred acres upon which a lien had been 
declared to secure these fees, should be conveved 
to these solicitors in full payment of same. It 
being conceded, however, that the executor and 
representatives of John P. Brown did not have 
power to conclude this arrangement by a convey- 
ance, it was therefore provided that the executor 
should file a bill in the Chancerv Court and obtain 
a confirmation of this arrangement, and by decree 
vest title as provided. It was also stipulated that 
in the event the Court should decline to confirm 
the agreement by decree passing the title, that 
then a decree should be obtained ordering a sale 
of this particular one hundred and thirty acres, 
and in the latter event the creditors thus provided 



80 NASHVILLE : 



Lencave f. McDowell. 



for agreed to bid their full claims on this parcel 
in complete exoneration of the estate. As a 
further part of this plan, it was agreed that the 
lien upon the five hundred acres should be waived. 
This latter agreement was manifestly upon con- 
sideration that the other parts of the agreement 
should be carried out. 

Fourth, — It further appears that no bill was ever 
filed by the executor as provided, and this plan 
of settlement was therefore never confirmed or 
perfected, and the title was never vested as con- 
tracted for. It is to be inferred — though as to 
this there is no direct proof — that complainants, as 
assignees of McDowell and his associates, went into 
possession of the parcel contracted for in the way 
above mentioned, and remained in possession until 
the termination of the questions made by the non- 
resident defendants. The result of this petition 
was that the original decree was set aside and 
annulled as to these non-residents, and title to 
seven-eighths of the entire subject-matter in con- 
troversy decreed to be in these non-residents. The 
history of this litigation and its final result is to 
be found in . the case of Brow)i v. Brown ef al,^ 
86 Tenn., 277 et seq. 

As a consequence of this decision, the executor 
and devisees of John P. Brown surrendered pos- 
session of seven-eighths of the eleven hundred acres 
in controversy; and in this the complainants, as 
assignees of McDowell and others, acquiesced, and 
abandoned without actual eviction their possession 



DECEMBER TERM, 1891. 81 



Leneave v. McDowell. 



of the one hundred and thirty acre tract. There 
being no further possibility of obtaining title to 
the one hundred and thirty acres, in view of this 
failure of the John P. Brown title, complainants 
filed this bill and rest their right of recovery 
upon the facts we have recited. 

The liability of Defendant McDowell must depend 
upon the construction of the contract of assign- 
ment, and arises as a consequence of the legal 
eftect of the words of warranty and guarantee 
therein. It is clear that the parties contemplated 
the possibility that title to the one hundred and 
thirtj' acres might never be confirmed. The wit- 
ness who proves the contents of the last agree- 
ment concerning settlement of the fees, says that 
the agreement was drawn with reference to the 
possible results of the pending effort to re-open 
the decree upon which the title of the Brown 
estate depended. That agreement was obviously 
nothing more than an executory contract for the 
settlement of the indebtedness of the estate in 
land, or by the sale of a particular part of the 
land. To complete it the executor was required 
to file a bill to obtain proper decrees confirming 
the arrangement or decreeing a public sale. The 
agreement waiving or releasing the lien of those 
fees on five hundred acres was clearly dependent 
upon the ability of the executor to carry out his 
part of the agreement. The pendency of the non- 
resident litigation was doubtless the reason why 

he failed to file the bill he had agreed to file. 
6— 7p 



82 NASHVILLE : 



Lencave v. McDowell. 



The failure of title made the filing of any such 
bill after termination of that suit useless. In this 
view the proposed settlement fell through, and the 
release of lien fell with it. The interest sold or 
assigned by McDowell is described as his interest 
" in said fee or land as the case may 6e," and in 
the conveying part of the agreement he assigns 
and conveys "all his right, title, claim, and interest 
in and to said land and fee." And when we 
reach the covenanting part of his assignment, we 
find that his contract is that "in the event said 
Porter does not get the land therein described, 
and loses all or any part of the amount of fee 
agreed upon, the » said McDowell warrants and 
guarantees to said Porter, to the extent of seven 
hundred dollars, to make up his proportionate part 
of such loss." From this we understand that this 
was but an assignment of the fee of one thousand 
dollars due to McDowell as agreed to be paid in 
the last agreement. And that if the agreement 
therein referred to should fail, and the assignee 
did not get the land, and should fail to. collect 
the fee, or as much as seven hundred dollars of 
it, that to the extent of the loss the assignee 
should be made good. The land he has failed to 
get. But this very failure revived the claim 
against the estate for the fee due to McDowell. 

The bill neither alleges, nor does the evidence 
show,, any eftbrt to collect this fee from the 
Brown estate. The Brown title to the 130 acres 
failed in 1887. This bill was filed in 1890. 



DECEMBER TERM, 1891; 83 

 —- - -^ "   ■— -■   ■— ---^ ■_-iii..-i ^—.,.,1 ■■--■■I --.1 1^1   — I— - — 

Leneave v. McDowell. 

Though nearly three years elapsed between the 
adjudication of the Brown title and the bringing 
of this suit, yet no effort seems to have been 
made by demand or suit to enforce this claim 
agaihst the Brown estate. If it be assumed that 
the statute of limitations had barred a suit for the 
fee as a debt, yet the lien retained to* secure these 
fees on 500 acres was not barred. Martin v. Neb- 
lett, 86 Tenn., 383. While seven-eighths of this 
tract charged with this lien had been lost, yet it 
does not follow that the remaining one-eighth 
would not have discharged the claim assigned by 
McDowell. But complainants' contention is, that 
the obligation of the defendant is an absolute en- 
gagement to repay seven hundred dollars upon 
failure to get the land, and that it was not in- 
cumbent on them to take any steps to collect the 
fee by suit or otherwise, or to show that the fee 
cannot be collected. The claim or interest assigned 
was a non-negotiable chose in action. An assignee 
of even negotiable paper may so frame his assign- 
ment as to protect from liability under any cir- 
cumstances. So "he may make his liability de- 
pend upon other and difterent conditions than those 
general rules w^hich govern indorsements of nego- 
tiable paper under the law merchant." T'alb/ v. 
Hodge, 3 Hum., 74. If the assignee of negotiable 
paper may limit or enlarge his liability according 
to the agreement and intent of the parties, a 
fortiori may the assignee of such a claim and 
contract as was the subject of this transfer; and 



84 • NASHVILLE: 



Leneave v, McDowell. 



such an assignor may niake his liability depend 
upon just sutth conditions as he may insert in Iris 
contract. The principle upon which the cases rest 
relating to special contracts of guarantee is that 
all such contracts are to be construed so as to 
carry out the intention of the parties, the assignor 
being only Ifound to the extent of his undertaking. 
CaUs V. Kittrell, 7 Heis., 609 ; Williams v. Miller^ 
2 Lea, 409-414. 

This guarantee must be treated as a special and 
limited contract, and not as an absolute engage- 
ment. It is a guarantee against loss of land and 
fee. That is to say, if the land be lost, and if 
as much as seven hundred dollars of the fee be 
not realized, then the guarantor is to make up 
such loss to the extent necessary to make the 
sum realized on the fee of one thousand dollars 
equal to seven hundred. It is a guarantee that 
he shall realize seven hundred dollars if he shall 
lose the land and the fee. This guarantee against 
a specified loss implies an obligation upon the part 
of the assignee to take such proper steps and use 
such reasonable diligence as to guard himself 
against loss Such an assignee ought to show 
that the claim has been lost without negligence. 
This might have been shown by proof of unsuc- 
cessful litigation, or by evidence that litigation 
would have been fruitless. Jones v. Greenlaw^ 6 
Cold., 342; 7 Heis., 609. 

Complainants have not even shown a demand 
upon tlie representatives of the Brown estate, and 



DECEMBER TERM, 1891. 85 



Leneave v. McDowell. 



have contented themselves with evidence as to the 

4 

loss of the title to seven-eighths of the land which 
was to have been taken in payment of the fee. 
They have no legal or moral right to throw this 
loss upon defendant when they make no showing 
as to any eflFort to protect themselves as assignees 
of this fee against Brown's estate. 

Reverse the decree and dismiss the bill with 
costs. 



86 NASHVILLE : 



Railroad v. Pitt, Adm'r. 



Railroad v, Pitt, Adm'r. 
{Nashville. January 7, 1892.) 

1. Necligence. Erroneous charge. 

In suit against railroad company for the death of an employe, a track- 
man, killed in the act, averred to have been done under the order of 
a superior, of alighting from a slowly-moving train, it is error for the 
Court to refuse, upon defendant's request, to give to the jury the 
following instruction, there being material evidence of the slate of 
facts therein assumed, viz. : *' If you shall find from the proof that 
the supervisor said to the hands, *If the train is going slow enough, 
get cff where Hussey is at work; if not, go on over to Faxon and 
come back on the' gravel-train,' and the hands so spoken to were 
accustomed to getting off and on moving trains, and a discretion was 
left the hands whether they would jump off or not, then the plaintiff 
cannot recover on account of the supervisor's order or direction." 

2. Same. Same, 

And the error of this inij^roper refusal to give this correct instruction 
as requested, is not cured by the following proposition, itself errone- 
ous, in the general charge, viz.: "If the instructions [of the super- 
visor] left it to the discretion of the deceased and other hands whether 
they should get off or not, and the deceased negligently exercised 
this discretion in attempting to get off at time he did, or in act of 
getting off, and the negligence of the deceased was the direct cause 
of his injury, then he cannot recover, and you should so find." 

3. Dec LA R ATION. In administrator^ s suit for 7vrongful killing of his intestate^ 

must aier there is widoiv^ children^ or next of kin. 

In administrator's suit to recover damages of the party who has un- 
lawfully caused the death of his intestate, there must be an averment 
in the declaration that the deceased left a widow, or children, or next 
of kin, for whose benefit the suit is prosecuted. 

Code construed: §§3130-3132 (M. & V.); §§2291, 2292 (T. & S.) 

Cases cited and approved: Webb v. Railway Co., 88 Tenn., 119; 
Greenlee v. Railroad, 5 Lea, 418; Trafford z^. Adams Express Co., 



DECEMBER TERM, 1891. 87 

Railroad v, Pitt, Adm'r. 

8 Lea, lOO; Railroad v. Lilly, 90 Tenn., 563; Evans 1/, Thompson, 
12 Heis., 536. 

« 

4. Amendment. Of declaration after judgment. 

And the omission of this material averment cannot be cured by amend- 
ment after judgment, under the statute providing that defects **in 
matters of form may be rectified and amended '* after judgment. 

Code construed: ^3583 (M. & V.) ; §2872*(T. & S.). 

Case cited and approved: Cannon r. Phillips, 2 Sneed, 186. 



FROM MONTGOMERY. 



Appeal ill error from Circuit Court of Mont- 
gomery County. A. H. Munford, J. 

West & Burney for Railroad. 

Leech & Savage, and G. L. Pitt for Pitt, Adm'r. 

Caldwell, J. This is an action by G. L. Pitt, 
administrator, against the Louisville and Nashville 
Railroad Company, for having negligently and 
wrongfully caused the death of his intestate, New- 
ton ^Sullivan, by requiring him to alight from a 
moving train. 

The defendant pleaded not guilty. On the issue 
BO made the case was tried, resulting in verdict 
and judgment for $4,000 in favor of the plaintiff. 

Motions for new trial and in arrest of judgment 



88 NASHVILLE: 



Railroad v. Pitt, Adm'r. 



having bfeen successively made and overruled, the 
defendant appealed in error. 

The deceased was an employe of the defendant, 
engaged with numerous other hands in "raising' 
the road-bed near the Tennessee River, at a point 
between Danville and Faxon. On the day of the 
accident he and others, in charge of the defendant's 
supervisor, took passage on a regular passenger- 
train to Danville, w^here it was supposed they 
would find "the gravel-train," which would con- 
vey them thence to their work. On reaching 

Danville it*was ascertaiijed that "the gravel-train'' 
was not there, but at Faxon, the next station 

south; whereupon a conference was held between 
the supervisor and the conductor of the passenger- 
train about the further passage of the hands on 
the latter's train. After this conference the super- 
visor made some statement to the hands, and they 
remained aboard until the train reached the place 
at which they w^ere to perform their labor. There 
they disembarked while the train was moving 
slowly. In alighting, Newton Sullivan, plaintift^'s 
intestate, fell, was thrown under the wheels, and 
so injured that he died in less than an hour. 
The supervisor was not present at this time, hav- 
ing gotten off the train, as he told the hands he 
would, about one mile back. 

The principal controversy in the Court below, 
was whether the accident was the result of Sulli- 
van's indiscretion, or of his obedience to an order 
of the supervisor. 



DECEMBER TERM, 1891. 89 



Railroad v. Pitt, Adm'r. 



Some of the witnesses testified that the supervisor, 
after his conference with the conductor, entered 
the coach and said to the hands: "Boys, the train 
will slow up at the work, and you will get oiF 
and go to work where Mr. Ilussey is at work;" 
while others testified that the supervisor's order 
was that the hands should get off where Hussey 
was at work "?/ the train shoidd be going slow 
enough^'' if not, that they should go on to Faxon 
and return on the gravel-train. 

The latter was the defendant's theory of the 
facts, and upon that theory defendant's counsel 
requested the Court to instruct the jury as follows: 

"If you shall find from the proof that the 
supervisor said to the hands, 'If the train is going 
slow enough, get oft' where Hussey is at work; if 
not, go on over to Faxon and come back on the 
gravel-train,' and the hands so spoken to were 
accustomed to getting off" and on moving trains, 
and a discretion was left the hands whether they 
would jump off" or not, then tlie plaintiff* cannot 
recover on account of the supervisor's order or 
direction." 

Clearly this was a proper instruction upon a 
material question in the case, and it should have 
been given unless embraced in the general charge. 
On this point the Court told the jury that "if 
the instructions left it to the discretion of the 
deceased and other hands whether they should get 
ofl:* or not, and the deceased negligently exercised 
this discretion in attempting to get off^ at time he 



90 NASHVILLE : 



Railroad v. Pitt, Adm'r. 



did, or in act of getting off, and the negligence 
of the deceased was the direct cause of his injury, 
then he cannot recover, and you should so find." 

Thfs direction of the Court manifestly does not 
embrace the proposition contained in the instruction 
requested. 

Instead of telling the jury, as requested, that 
defendant would hot be liable if the supervisor's 
order left the deceased to decide for himself 
whether or not he would alight at the particular 
time and place, the Court told them the plaintiff 
could not recover if the order allowed the deceased 
such discretion, and his negligent exercise of that 
discretion directly caused his injury. The instruc- 
tion requested exonerated the defendant, if it should 
be found that the deceased was left to act upon 
his own discretion, while the charge given made 
non-liability depend, not upon the allowance of 
that discretion, but upon the negligent exercise of 
it. The charge virtually put the character of th« 
supervisor's order out of the case, by making non- 
liability dependent upon negligence on the part of 
the deceased; for, of course, the plaintiff could 
have no recovery if the negligence of deceased 
was the direct cause of his death. In such case it 
would be entirely immaterial whether the order 
was discretionary or mandatory. 

It was error, for which a new trial must be 
awarded, to refuse the instruction requested. 

The motion in arrest of judgment was based 
upon the failure of plaintiff, who sued as adminis- 



DECEMBER TERM, 1891. 91 



Railroad 7/. Pitt, Adm'r. 



trator, to aver that his intestate left a widow, 
child, or next of kin to take the benefit of the 
recovery sought. 

Pending this motion, plaintift' was allowed to 
amend his declaration by adding an averment that 
the deceased left a widow, for whose use and 
benefit the suit was brought, and then the motion 
was overruled. This action of the Court is as- 
signed as error. 

If the averment was necessary to plaintiflF's 
right to maintain his action, the amendment came 
too late, and should not have been allowed. Only 
defects "in matters of form may be rectified and 
amended" after judgment. Code (M. & V.), §3583; 
Cannon v. PhUHps, 2 Sneed, 186. 

Was the added averment a nccessarv one, with- 
out which the plaintiff could not legally have a 
recovery? 

The right to maintain an action against one 
person for wrongfully causing the death of another 
is purely statutory — given for the benefit of the 
widow, children, or next of kin of the deceased. 
The suit may be brought by the beneficiaries in 
their own right, or by the personal representative 
for their use and benefit. Code, §§3130-3132; Webb 
v. Railway Co.^ 4 Pickle, 119; Greenlee v. Rail- 
road, 5 Lea, 418; Trafford v. Adams Express Co.j 
8 Lea, 100. 

If there be no widow, child, or next of kin, 
the suit cannot be maintained at all ; for, in such 
event, the case is without the statute, and the 



92 NASHVILLE : 



Railroad 7>. Pitt, Adm'r. 



right of action dies with the injured person, as at 
the common law. In a recent case so deciding, 
this Court said: "It is only where there is a 
widow, child, or next of kin to receive the benefit 
that the rule of the common law is abrogated ; 
where there are no such kindred to become ben- 
eficiaries tlie statute does not apply, and tlie right 
of action abates, now as formerly, with the deatJi 
of the injured person." IS. 7"., V. tf* G. Ry Co. 
V. Thos. B. Lillii^ Adm'r, etc., 6 Pickle, 563. 

The first rule of good pleading requires tlie 
plaintiff to aver such facts as will, under the law, 
entitle him to recover if the averments be estab- 
lished by proof. This requirement is imperative 
since the Code, as well as by the common law. 
Eravs v. Thompso)), 12 Ileis., 536. 

To authorize a recovery under the statute before 
us, two facts are essential in every case : First, a 
wrongful act by the defendant, causing death ; 
secondly, the existence of a widow, child, or next 
of kin of the* deceased, to take the recovery. If 
either of these facts be wanting the plaintiflT must 
inevitably fail in his action. One fact is as im- 
portant as the other, and both must be shown 
before a recovery can be had. Though there be 
widow, child, or next of kin surviving, the plaintiff 
must fail, if the injury resulting in death was 
not caused by the wrongful act of the defendant; 
for, in that case, the deceased himself had no 
'' right of action." Or, if the death resulted from 
the wrongful act of the defendant, and the de^ 



DECEMBER TERM, 1891. 93 

Railroad z^ Pitt, Adm'r. 

ceased left no widow, child, or next of kin, the 
plaintiff must as certainly be defeated, because that 
case would not come within the statute, but would 
be governed by that rule of- the common law. by 
which the right of action dies with the injured 
person. 

The action being maintainable alone under the 
statute, there can be no recovery unless both the 
wrongful act and the existence of some beneficiary 
contemplated by the statute, be proved ; and, to 
be allowable in proof, such facts must 'first be 
a'verred. The averment of the former will not 
justify proof of both. 

The averment of the wrongful act alone does 
not present a. case which, if established by proof, 
will authorize a judgment in favor of the plaintiff. 
It does not disclose a prima facie right of re- 
covery; therefore, the original declaration in this 
case was bad. The additional averment that the 
deceased left a widow, child, or next of kin, was 
essential to plaintiff's right to maintain the action. 
Wherever the question has arisen upon statutes 
similar to our own the Courts have held with 
unanimity that the declaration is fatally defective 
unless it avers that the deceased left a widow, 
child, or next of kin surviving him. Such, at 
least, is the uniform holding of all the cases we 
have been able to find. It is the prevailing doc- 
trine in Xew York, Indiana, Illinois, Minnesota, 
Averment, South Carolina, Kansas, and Wisconsin, 
as will appear from the following cases ; Safford v. 



94 NASHVILLE : 



Railroad v. Pitt, Adm'r. 



Drew^ 3 Duer, 627; Lucas v. N. Y. Central R. 
E. Co., 21 Barbour, 245; I. R. R. Co. v. Keely's 
AdmW, 23 Ii>d., 133; Stewart v. T. H. ^ I. R. R. 
Co.,, 103 Iiid., 44 (S. C, 21 Am. and Eng. R. 
R. Cas., 209); C. ^ R. L R. R. Co. v. Morris, 
26 111., 400; Coiiant v. Griffin, 48 111., 411; Holton 
Y. Daly, 106 111., 131 ; Schwarz v. Judd, 28 Minn., 
371; Westcott v. C. V. R. R. Co., 61 Vt., 438- 
Geroux's AdmW v. Graves (Vt.), 19 Atlantic R., 
987; Lilly v. C. C. ^ A. R. R. Co. (S. C), 10 
8. E. R., 932; Mo. Pac. Ry Co. v. Barber, 44 
Am. and Eng. R. R. Cas., 523; Woodward V. 
Railway Co., 23 Wis., 400. 

The same holding was made by the United 
States Circuit Court upon construction of statute 
of Montana. 45 Fed. R., 407. 

"The Missouri cases announce the same principle; 
that is, that a person suing under the statute 
must aver and prove all the facts necessary to 
bring himself within its terms. Barker v. H. (J* 
St. J. R. R. Co., 91 xMo., 86; Mcintosh v. Mo. 
Pac. R'y Co. (Mo.), 15 S. W. R., 80; Dulaney v. 
Mo. Pac. Ry Co., 21 Mo. App., 597. 

The logic of the Kentucky cases, which decide 
that the personal representative cannot maintain his 
action if the deceased left neither widow nor heir (the 
statutory beneficiaries of the action), would seem to 
lead to the same result. Henderson^ s Adm'r v. Ky. 
C. R. R. Co., 5 S. W. R., 875; Koening's AthnW^ 
V. Covington, 12 S. W. R., 128; C, N. 0. ^ T. P. 
Ry Co. V. Adams' AdmW, 13 S. W. R., 4-28. 



DECEMBER TERM, 1891. 95 



Railroad v. Pitt, Adm*r. 



As applied to statutes like ours, the Supreme 
Court of Virginia recognizes and approves the 
same requirement in pleading; but, because the 
statute of that State gives the personal representa- 
tive a right of action ^enera%— first for the family, 
and, secondly, for the estate of the deceased — it is 
held not to be necessary that he should s^tate in 
his declaration whether he prosecutes the suit for 
the one or the other. If for either it is sufficient. 
B. Sf 0. R. R. Co. V. Wightman's AdmW, 29 
Grattan, 431 ; Matthews v. Warver^s Adm'r, Ib.^ 570. 

In North Carolina the personal representative is, 
properly, not required to aver that the deceased 
left a widow, child, or next of kin, "because the 
statute [of that State] gives the action and author- 
izes the recovery of damages in any event," if 
the wrongful act of the defendant be established, 
the recovery to go to the relatives of the deceased, 
if any, and, if none, then to the university of the 
State, under the general statute. Warner v. W, 
N. a R, R. Co., 94 K C, 250. 

The same rule would prevail here as in Virginia 
and North Carolina, if, under our statute as under 
theirs, the right of the personal representative to 
maintain his action were dependent alone upon 
the wrongful act of the defendant, and not also 
upon the further fact that the deceased left a 
widow, child, or next of kin. The difference is, 
that the abrogation of the common law rule as to 
the extinguishment of such a right of action by 
death is entire in those States, while it is only 



96 NASHVILLE: 

Railroad v. Pitt, Adm'r. 



partial in this one. There the plaintift' brings him- 
self within the statute hy a simple averment of 
the death of his intestate by the wrongful act of 
tlie defendjint. To have that effect here, he must 
aver, in addition, the survivorship of some person 
within the statutory designation. 

As the defendant is entitled to a reversal and 
new trial on account of the error in the charge, 
we do not decide whether tlie defect in the decla- 
ration was cured by the verdict or not. 

Though not averred, the deceased was shown to 
have left a widow. Not onlv did the defendant 
fail to object to the evidence, but it introduced 
the widow lierself as a witness, and proved the 
fact by her. 

Reverse and remand. 



DECEMBER TERM, 1891. 97 



Brown v. Cheatham. 



FROM MAURY. 



Appeal in error from Chancery Court of Maury 

County.. A. J. Abernathy, Ch. 
7—7 p 



Brown v. Cheatham. hia % 



{Nashville. January 9, 1892.) 

1. Marriage and Divorce. Of slaves. 

Slave marriages, though never authorized or regulated by statute in this 
State, have been recognized as valid by the Courts, and the issue 
thereof declared legitimate, when the marriage was entered into with 
the master's consent. And such marriages, once consummated, could 
not be dissolved by any act of the parties while slaves without like 
consent of the master. 

Cases cited and approved: Downs z'. Allen, to Lea, 666; Andrews z/. 

Page, 3 Heis., 668; 6 Jones (N. C), 235; 20 Johns., i. 

2. Same. Same, 

And the parties tc such valid slave marriage had not the right, after 
their emancipation, to annul it and enter into other matrimonial 
unions; and if they did so the issue of the latter marriage is ille- 
gitimate. 

3. Same. Same. 

The Act of 1865-66, Ch. 40, providing that **all free persons of color, 
who were living together as husband and wife while in a state of 
slavery, aje hereby declared to be man and wife, and their children 
legitimately entitled to an inheritance'' of their parents' estates, 
applies alone to such slave marriages as had been lawfully entered into. 

Code construed : ^3303 (M. & V.) ; § 2447a (T. & S.). 



98 NASHVILLE : 



Brown v, Cheatham. 



SouTHALL & Smiser foF Brown. 

FiGUERS & Padgett, W. S. Fleming & Son, aud 
Hughes & Hatcher for Cheatham. 

LuRTON, J. This 18 a bill of ejectment. Com- 
plainant claims as heir at law of Addison Denton, 
colored. Defendants claim that Addison died with- 
out heirs at law, and that under § 3272, Code of 
(M. & v.), the property descended to his widow, 
Sylvester Denton, from whom they purchased and 
under whom they claim. The title depends upon 
the validity of the marriage of Rachel, the mother 
of complainant, to the intestate, Addison. 

Under the statute a jury was called, and issues 
of fact submitted for th'eir determination. The jury 
found that the marriage of Rachel to Denton was 
valid, and that complainant was the sole heir at 
law of said Denton; and a decree for the recovery 
of the, property was pronounced. 

Rachel is shown to have been a slave, and to 
have so continued until her emancipation in 1865 
by the amendments to the Constitution of this 
State adopted in that year. It does not appear 
whether Addison was free or slave. 

There was evidence tending to show the cele- 
bration of a marriage ceremony, by a colored 
preacher, in 1864, between Rachel and Addison. 
This was followed by cohabitation, which continued 
for about a year, when Addison abandoned her, 
and in April, 1866, contracted another marriage, 



. DECEMBER TERM, 1891. 99 

Brown v. Cheaiham. 

under license, with a woman known as Sylvester. 
Addison and Sylvester lived together ^s husband 
and wife until the death of the former in 1878. 
Defendants claim under conveyance from this ^ 
woman Sylvester. Eitlier just before or just after 
the desertion of Rachel by Addison complainant 
was born. There is evidence tending to show 
that Addison recognized him as his son. Prior 
to this short-lived connection with Addison, Rachel 
is shown to have contracted three other slave 
marriages. The validity of her marriage to Den- 
ton depended chiefly upon the sufficiency of the 
evidence tending to show the dissolution of these 
antecedent contracts. 

The Court, after telling the jury that our 
statutes on the subject of marriage and divorce 
did not relate to or affect the slave population of 
the State, instructed them as 'to the dissolution of 
marriages between slaves as follows : " But as no 
law was in existence either before or during the 
war to require slaves to obtain licenses prior to 
marriage, or authorizing the issuance of such li- 
censes, so there was no law authorizing a divorce 
of husband and wife who were slaves; and a per- 
manent separation of the parties by a sale of the 
husband or wife by the master, or by an}'^ other 
act of the parties, either with or without the con- 
sent of the master, would amount to divorce as 
between such slaves; and any other- marriage after 
such permanent separation, entered into by either 
husband or wife, would be a valid marriage as 



100 NASHVILLE : 



Brown ?'. Cheatham. 



between the slaves or under § 3304 of the Code." 
This presents the question as to whether a sepa- 
ration by a married slave couple without consent 
of the owners would be such a dissolution of a 
marriage as would make such separated parties 
competent to contract a subsequent marriage. It 
is true that our statutory marriage and divorce 
law has never been regarded as applying to the 
slaves held in this State. Yet it by no means 
followed that slaves could not enter into de facto 
marriages to which many of the consequences of 
•a statutory marriage attached. This subject was 
fullv and ably considered bv this Court in the 
great case of Andrews v. Page, where the opinion 
was delivered by Judge Nelsou. After reviewing 
the history of slavery in this State, and the status 
of the slave as a person in the light of the de- 
cisions of the Courts of .this State, he sumfned up 
the ante beihim law upon the subject of slave 
marriages in these words : " We hold that a mar- 
riage between slaves, with the assent of their 
owners, whether contracted in common law form 
or celebrated under the statute, always was a valid 
marriage in this State, and that the issue of such 
marriages were not illegitimates." 3 Ileis., 668. 
It is true that this holding was not in accord 
with the views entertained by the Courts of several 
of the Southern States. In many of these it had 
been held that slave marriages were null and void. 
The ground upon which these cases stood was (1) 
that a slave had no such freedom of will as 



DECEMBER TERM, 1891. 101 

Brown v, Cheatham. 

would enable him to consent to a marriage; (2) 
that the duties of husband and wife were incom- 
patible with the duties which the slave owed to 
his master. 1 Bishop on Marriages and Divorces, 
Section 156 and cases cited. 

Judge Pearson, in • Howard v. Hovjard^ tlius 
stated the doctrine as generally held: ** Marriage 
is based upon contract; consequently, the relation 
of man and wife cannot exist among slaves. It 
is excluded both on account of their incapacity to 
contract and of the paramount right of ownership 
in them as property." 6 Jones (N. C), 235. But,* as 
demonstrated by the masterly review of the status 
of slaves in this State, these objections to slave 
marriages, growing out of the want of freedom of 
' will and of the paramount duties of the slave to 
his owner, are altogether obviated when the owners 
have consented to the marriage. Whenever such 
consent is shown, either by direct evidence or by 
facts circumstantially establishing such consent, the 
marriage of slaves is a valid and legal marriage, 
and the issue legitimate. In New York and 
Massachusetts — both having been slave States for 
more than a century — these legal obstacles to mar- 
riage among slaves were removed by legislation. 
In JS'ew Y^rk it was by statute declared that 
slave marriages should be . valid, and in Massa- 
chusetts an act of assembly provided- that "no 
master shall unreasonably deny marriage to his 
negro with one of the same nation, any law, usage, 
or custom to the contrary notwithstanding." Mar- 



102 NASHVILLE : 



Brown v. Cheatham. 



bletown v. Kingston^ 20 Johns., 1 ; Bishop on Mar- 
riage and Divorce, Section 156, who for the 
Massachusetts legislation cites a note to Oliver v. 
SuUy Quincey, 29. 

That the consent of the master was essential 
to the validity of a slave marriage was again an- 
nounced by this Court in Doioiie v. Allen, 10 Lea, 
666. 

Inasmuch as our divorce laws did not apply to 
slaves, and inasmuch as the very nature of the 
institution of slavery made all such marriages sub- 
ject to the will of the owner, so, for the same 
reasons, the dissolution of these de facto marriages 
depended likewise upon the will of the owner. 
Separation of the parties by consent of the owners 
operated in this State to dissolve the union and 
render the divorced persons competent to contract 
a new relation. But the voluntary separation of 
husband and wife has never been held to operate 
as a divorce. The consent of the master was as 
essential to the putting oft* of the yoke as it was 
to the putting on. The reasons in the one case 
are as equally operative in the other, and lie, as we 
have seen, in the absence of power to consent and 
in the relation the slave stood toward the owner. 
The permanent separation of a slave couple by act 
of tlie master, though not consented to by the 
parties — as, when the husband or wife was sold to 
another State — 0{)erated necessarily to dissolve the 
relation. The temporary separation incident to a 
limited hiring or due to a temporary exigency. 



DECEMBER TEEM, 1891. 103 

Brown v, Cheatham. 

Buch as the sending of a slave inside the lines of 
the Confederate army to prevent his forcible ab- 
duction or his running away, and not intended by 
the owner as a permanent separation, would not 
operate as a dissolution of a rfe facto marriage. 
Such a divorce would rest neither upon the con- 
sent of the parties nor the owner, and would not 
be the intended or necessary result of the act of 
the owner. It was error in the Chancellor to 
instruct the jury as he did — that a permanent 
separation by the act of the master, "or by any 
other act of the parties, either with or without 
the consent of the master, would amount to a 
divorce." Such a view of the law would have 
resulted in wide-spread concubinage, and would 
have operated to defeat the humane and Christian 
endeavors of masters to inculcate the obligation of 
the marriage relation and the duty of virtue. It 
is not in accord with the decided cases which we 
have before cited, both of which expressly make 
the dissolution of the union depend upon the con- 
sent of the owner. 

The Act of 1866, being *§§ 3303, 3304, Code (M. 
& v.), upon which his Honor laid much stress in 
his charge, had no other effect than to ratify such 
slave marriages as had been contracted with the 
consent of the owners, and which therefore con- 
stituted the parties "husband and wife" within the 
meaning of these sections. The right of inherit- 
ance conferred by that Act is dependent upon the 
existence of such marital relations as were valid 



104 KASHVILLE : 



Brown v. Cheatham. 



under the law of marriage as applicable to slaves. 
If married conformably to the usages of slavery, 
then they constituted the "husband and wife" re- 
ferred to in the Act of 1866. To construe that 
Act as making valid every relation of concubinage 
into which the parties may have entered, and dur- 
ing which they may have lived as if husband and 
wife, would do violence to the well-intended pur- 
pose of the law-makers. To construe the Act as 
operating to set up and restore matrimonial re- 
lations theretofore dissolved according to the law 
of the State affecting slave divorces, would operate 
to restore the three previous marriages of the 
woman Rachel, and constitute her a wife with 
three living husbands. 

If the dt facto relation had been dissolved lyr 
consent of the master, or as a necessary result of 
his act, then the Act of 1866 did not operate to 
restore the bonds. So, if that Act should be con- 
strued as recognizing no distinction between mere 
meretricious cohabitations and the marriages regu- 
larly celebrated by consent of the owner, it would 
result in rendering many subsequent marriages big- 
amous, and illegitimate thousands of' childcen who 
were, under the law as it stood before, the legiti- 
mate issue of lawful wedlock. 

The Act should be construed as merely ratify- 
ing marriages which, as we have seen, were already 
lawful and legitimate under the law as it stood. 
In this view of the statute it had no bearing 
upon this case. If Rachel was competent to marry 



DECEMBER TERM, 1891. 105 

. Brown v, Cheatham. 

Denton in 1864, then, independently of that statute, 
her marriage, if with the consent of her owner, 
was valid. If she was not competent by reason 
of a previous marriage, or if her marriage was 
in defiance of her owner, as it would be if, as 
there was evidence tending to show, she left her 
owner as the captive of Denton and fled to the 
shelter of a I^ederal garrison, then the Act of 
1866 did not validate such invalid marriage. 

The case will be reversed and a new trial 
awarded, when his Honor will charge the jury 
upon the lines herein indicated. 

Complainant will pay the costs of appeal. 



106 NASHVILLE : 

4 



O'Bryan Bros. ?'. Glenn Bros. 



O'Bryan Bros. v. Glenn Bros. 
{Nashville. January 9, 1892.) 

1. Estoppel. By repudiation of benefits of deed. 

Repudiation of the benefits of a deed by an unequivocal and decisive 
act done by the beneficiary with full knowledge of all the facts affect- 
ing his rights, estops him conclusively and forever to assert any rights 
under the deed. 

Cases cited and approved: Farquharson v, McDonald, 2 Heis., 419; 
Bell V, Steel, 2 Hum., 148. 

2. Same. Same. 

And filing bill impeaching the deed as fraudulent is such unequivocal 
and decisive act on the part of the beneficiary as, when done with 
full knowledge of the facts, works an estoppel upon him. 

3. Same. Same. 

And if the bill was filed with full knowledge of the facts, the estoppel 
attaches and continues, although the act was induced by the mistaken 
advice of an attorney as to the validity of the deed, and notwith- 
standing the fact that the beneficiary, upon being better advised, 
promptly dismissed his bill before any loss or injury had resulted to 
any one in consequence of its being filed. 



FROM MAURY. 



Appeal from Chancery Court of Maury County. 
A. J. Abernathy, Ch. 



DECEMBER TERM, 1891. 107 



O'Bryan Bros. v. Glenn Bros. 



IIuGHES & Hatcher, and .Figuers & Padgett for 
O'Bryan Bros. 

George P. Frierson for Glenn Bros. 

Lea, J. On June 29, 1891, the Glenn Bros., 
merchants and residents of Maury County, made a 
special assignment of their stock to J. W. and C. 
A. Lee for the purpose of securing, in the order 
named, the following indebtedness: 

First, a debt of $350 to C. A. Lee; second, a 
debt* of $565 to O'Bryan Bros.; and, lastly, a debt 
of $371 to the Connell-Hall-McLester Co. On the 
same day the deed w-as filed for registration. 
The* trustees weiie given power to take immediate 
possession of said stock of goods, to sell the same- 
at once, and appropriate the proceeds to the 
payment of costs, then to the debts named in 
the order indicated. 

On the day after the deed was filed for registra- 
tion J. W. and C. A. Lee, who reside in William- 
son County, came to Columbia to examine into the 
matter. They went to the Register's oflSce, pro- 
cured the deed or a copy thereof, and carried it 
home with them. While in Columbia C. A. Lee 
asked the opinion of a lawyer in regard to the 
trust deed, who told him there was nothing for 
him to do but to accept the trust, qualify, and 
execute the same. Two days afterward the Lees 
went to Franklin, as C. A. Lee says, to seek ad- 
vice in regard to his duties, liabilities, and rights 



108 NASHVILLE : 



O' Bryan Bros. v. Glenn Bros. 



under the deed. Upon reaching Franklin they 
showed the deed to a bank cashier and a grocery 
merchant, who advised them that the deed, was 
worthless, ,and advised them to consult an attorney. 
They did so, and he advised them the deed was 
invalid, and void as contravening the general assign- 
ment statute. Thereupon, at the instance • of the 
attorney, an attachment bill was drafted, in which 
it was alleged that the deed was made to defraud 
the creditors of the Glenns, and especially the 
complainant, C. A. Lee, and asking that the deed 
be declared fraudulent and void, and the property 
therein conveyed be attached, sold, and applied to 
the payment of the indebtedness of the Glenns to 
complainants. » 

The bill was sworn to, and C. A. Lee boarded 
the train and went to Pulaski and obtained from 
the Chancellor a fiat for an attachment. He re- 
turned to Columbia, and on July 3 he filed the 
bill in the oflice of the Clerk and Master, and 
thereupon an attachment was issued and placed in 
the hands of the SheriiF, and the stock of goods 
conveyed in the assignment to the trustees, J. W. 
and C. A. Lee, was levied on by the Sherift'. 
After this they again consulted an attorney at 
Columbia, who advised them that the deed of 
assignment was valid, and then on July 9 they 
dismissed the attachment bill. Afterward they gave 
bond as trustees, and were proceeding to close the 
trust when the bill was filed in this case against 
them and the Glenn Bros, by O'Bryan Bros, and 



DECEMBER TERM, 1891. . 109 

O'Bryan Bros. z/. Glenn Bros. 

the assignee of the Connell-Hall-McLester Company, 
the two other creditors named in the assignment, 
to have a receiver appointed, and to exclude C. A. 
Lee from any benefit under the trust, as he had 
repudiated the same, alleging that the filing of 
the attachment bill was an election to renounce 
the trust. 

The Lees answered and admitted the facts above 
set forth, but insisted that they filed the attach- 
ment bill under the advice of an attorney, and 
alleged and proved that there was no loss or 
injury of any kind to the property attached from 

« 

the date of attachment to the dismissal of the bill. 

Upon the hearing the learned Chancellor held 
that, there being no loss or injury to the property, 
and as complainants suffered no loss or injury to 
their rights or interest in the premises, that de- 
fendants, J. W. and C. A. Lee, did not, by the 
filing of their attachment bill, lose their right 
to act as trustees and to execute the trust, and 
that the defendant, C. A. Lee, did not thereby 
forfeit or lose his rights under said deed, and 
complainants' bill was dismissed. 

The action of the Court was erroneous. The 
defendants could elect to take under the assign- 
ment, or they might renounce the same and attack 
the assignment, but a creditor cannot be permitted 
to assail and claim under an assignment. It has 
been held by this Court, and it is sustained by 
all the authorities, that any distinct and unequivo- 
cal act of renuuciation of the benefits of a deed 



110 . NASHVILLE : 



O' Bryan Bros. v. Glenn Bros. 



by any of the creditors intended to be benefited, 
will operate against any further claims under tlie 
deed. Farquharsoji v. McDonald^ 2 Heis., 419. 

They elected to renounce and repudiate t]ie 
benefits of the assignment when they filed the at- 
tachment bill alleging that the assignment was 
fraudulent and void. 121 X. Y., 167. But it is 
insisted that the attachment bill was filed by the 
defendants under a mistaken view of the law by 
an attorney. This can make no difference. The 
Lees were acquainted with all the facts in the 
case, and that they were wrongfully advised can- 
not, of itself, destroy or render nugatory their re- 
nunciation of the benefits under the assignment. 
Bell V. Steel, 2 Hum., 148. 

It is further insisted that complainants in this 
case suffered no loss or injury to their rights or 
interest by the filing of the attachment bill and 
the attaching of the assigned property, and, there- 
fore, that they are not estopped to assert their 
rights under the deed of assignment. Bigelow on 
Estoppel, 573 (5th Ed.), says: "The election, if made 
with knowledge of the facts, is in itself binding; 
it cannot be withdrawn without due consent, al- 
though it may not have been acted upon by an- 
other by any change of position." Herman, in his 
work on Estoppel and Res Judicata, 1177, edition 
of 1886, says: "One entitled to a benefit under an 
instrument, whether it be a will or any contract, 
if he claims the benefits of such instrument, he 
must abandon every right the assertion whereof 



DECEMBER TERM, 1891. Ill 

-■ r -1 I I    *■■ !■ ^MIM !■ ^^^ II II I  I  I II I I II I I I I III 

O' Bryan Bros. v. Glenn Br6s. 

would defeat even partially the provisions of the 
instrument. A party cannot occupy inconsistent 
positions, but will be confined to his election." 
In 2 Swan, 282, it is said: "In case of election, 
the rule is, if a person determines his election, it 
shall be forever determined." 

The question is. Has an election been made by 
a direct and unequivocal act? If so, he must 
stand by it, and his future actiop cannot be 
' changed by the fact that others were not injured ; 
andi therefore, it was wholly immaterial whether 
any loss or injury was sustained by complainants 
between the filing of the attachment bill and its 
dismissal. 

The result is that the decree of the Court dis- 
missing complainants' bill is reversed, and this 
cause will be remanded for the purpose of having 
said trust executed under the directions of the 
Court, in accordance with this opinion. The de- 
fendants, J. W. and C. A. Lee, will pay the cost 
of this Court and of the Court below. 



112 NASHVILLE 



* Barker v. Freeland. 



Barker v. Freeland. 
{Nashville. January 14, 1892.) 

1. Written Instruments. Cons/ruction of, 7vhin by Court and ivkm left 

to jury. 

It is a general rule that the Court must construe written instruments 
offered in evidence and declare their meaning to the jury. "But 
when the writing is not plain and unambiguous, and is such as re- 
quires the aid of parol evidence, either to identify the subject-matter 
or in order to ascertain the situation and surrounding circumstances, 
or the nature and quality of the subject-matter, and the parol evi- 
dence is conflicting, or such as admits of more than one conclusion, 
it is not error to submit the interpretation of the doubtful parts of 
the instrument, under proper instructions, to the jury." This case 
falls within the exception to the general rule. 

Cases cited and approved : Mills v. Karris, 12 Heis., 462; Mumford v. 
Railroad, 2 Lea, 393. 

2. Sales of Personalty. When title passes 1o buyer. 

It is a general rule that "when by the agreement the vendor is to do 
any thing to the goods for the purpose of putting them in that state 
in which the purchaser is to be bound to accept them, or, as it is 
sometimes worded, into a deliverable state, the performance of those 
things shall, in the absence of circumstances indicating a contrary 
intention, be taken to be a condition precedent to the vesting of the 
property." This case affords sufficient "circumstances indicating a 
contrary intention" to support the jury's finding under a proper 
charge that title passed to the buyer before final delivery of the goods. 

3. Same. Risk of injury to property. 

The general rule is that personal property, the subject-matter of sale, 
remains at the risk of the seller until the sale has been completed by 
delivery. But this is a mere presumption that may be rebutted by 
stipulation, or by "circumstances indicating a contrary intention," 



DECEMBER TERM, 1891, 113 

Barker v, Freeland. 

There are, in this case, circumstances that justify the jury's finding, 
under a proper charge, that the goods should be at the buyer's risk 
before final delivery. 



FROM GILES. 



Appeal from the Chancery Court of Giles County. 
A. J. Abbrnathy, Ch. 

Jones & Ewing for Barker. 

John T. Allen, W. H. McCallum, and J. P. 
Abernathy for Freeland. 

Lurton, J. Complainant bought from defendants 
a crop of potatoes in a certain forty-acre field. 
lie shipped them by rail from Pulaski to points 
in other States. Upon arrival at destination sev- 
eral car-loads were found to be worthless from 
decay. He alleges that they were not "good, 
merchantable stock" when delivered to him, and 
his damages to be the price he paid for them, 
plus freights expended. 

Issues were submitted to a jury, who found 
for defendants, and the Chancellor, upon the find- 
ings, dismissed the original bill. 

The contract of sale was in writing, and was 
8— 7p 



114 XASHVILLE : 



Barker v. Freeland. 



in these words : '' We this day sell Jacob Barker 
forty acres of Early Rose potatoes, at sixty cents 
per barrel. He furnishes sacks, and we are to 
put them at the depot at Pulaski as soon as sacks 
com^ to us. And we agree to give him full 
measure and good, merchantable stock; and we 
will keep his men out with us that will attend 
to filling and sewing the sacks. We will load a 
car a day, w^eather permitting. Said Barker is to 
pay for each car as loaded." 

The Court, in substance, instructed the jury 
that the defendants were, as matter of law arising 
upon construction of the written contract,' bound 
to deliver "good, merchantable stock" at their field 
and into the sacks of complainant; but that the 
question as to whether they were obligated to 
deliver "good, merchantable stock" on the cars at 
Pulaski was for the jury to say, under all the 
facts and circumstances submitted to them in the 
evidence; that if they found "good, merchantable 
stock '' had been delivered into the sacks of com- 
plainant, and that defendants had used due care 
in hauling them, when sacked, to the cars, that 
then defendants would not be liable for injuries 
consequent upon hauling them from the field to 
the cars, unless they should find that, under the 
contract, the potatoes were to be "good, merchant- 
able stock" when put on the cars. AVe must re- 
gard the verdict as determining that these potatoes 
were up to the contract when put into complain- 
ant's sacks in the field, for the jury were plainly 



DECEMBER TERM, 1891. 11 o 



Barker v. Freeland. 



instructed that defendants would be liable in case 
this were not so. The verdict must also be taken 
as settling the fact that defendants were guilty of 
no negligence in hauling them to Pulaski or in 
loading them on the cars. There was evidence 
tending to show that these potatoes were much 
injured by hauling them from the field where they 
were sacked to the cars at Pulaski, a distance of 
seven or eight miles, and that the subsequent 
decay was due to the injuries thus sustained. 
Complainant's contention was and is that the con- 
struction of the contract was exclusively for the 
Court; that under the written contract the title 
to the property did not pass to the buyer until 
delivery on the cars, and that the risk of delivery 
was on defendants. The Court was, in substance, 
requested * to so instruct the jury, but these re- 
quests were refused. 

From the evidence it appeared that these po- 
tatoes were undug at time of sale, and were in a 
field seven miles from the point where defendants 
were to put them on the cars; that they were 
the first crop of potatoes, and unusjially long and 
large. There was also evidence tending to show 
that such potatoes were much more liable to be 
broken if transported in sacks than in barrels, and 
that decay was more likely to result from such 
breakage if in sacks such as those furnished by 
complainant than if hauled in barrels, which was 
the more common and safer method. There was 
evidence tending to show that complainant's at ten- 



116 NASHVILLE: 



Barker ?'. Freeland. 



tion was called to these facts, and that he elected 
to use sacks as the cheaper method of getting 
the crop to market. 

It is aii indisputable proposition that when a 
contract is in writing, and its meaning is plain 
and unambiguous, that its interpretation is matter 
of law for the Court. But when the writing is 
not plain and unambiguous, and is such as requires 
the aid of parol evidence, either to identify the 
subject-matter or in order to ascertain the situation 
and surrounding circumstances, or the nature and 
quality of the subject-matter, and the parol evidence 
is conflicting, or such as admits of more than one 
conclusion, it is not error to submit the interpre- 
tation of the doubtful parts of the instrument, 
under proper instructions, to the jury. Thompson 
on Trials, Section 1081, and cases there cited. 

This proposition is clearly deducible from our 
own cases. Mills v. Farris^ 12 Ileis., 462; Mum.' 
ford V. Railroad^ 2 Lea, 393. 

The learned counsel for complainant has urged 
very strenuously the fact that the written contract 
required defendants, after the potatoes were sacked, 
to put them on the cars at Pulaski. From this 
fact he insists upon two conclusions of law as 
necessarily following: (1) That the property did 
not pass to the buyer until the seller had put 
them on the cars; (2) that the risk of delivery 
on the cars remained with the seller. 

Neither of these conclusions are the necessary 
consequence of an agreement by the seller to de- 



DECEMBER TERM, 1891. 117 



Barker v» Freeland. 



liver, though they generally follow. Let us look 
at the first. The doctrine as to the vesting of 
the property in sales of personalty, as deduced 
from the decided cases, has been very carefully and 
precisely formulated in what are so well known 
as the rules of Lord Blackburn. His first rule is 
this : " When h^ the agreement the vendor is to do 
any thing to the goods for the purpose of putting 
them in that state in which the purchaser is to be 
bound to accept them, or, as it is sometimes 
worded, into a deliverable state, the performance 
of those things shall, in the absence of circumstances 
indicating a contrary intention , be taken to be a 
condition precedent to the vesting of the property." 
Admitting that the putting of the goods on the 
cars would ordinarily be treated as a thing which 
was a condition precedent to the vesting of the 
property, yet this case presented circumstances 
''^•indicating a contrary intention^^ which might fairly 
be left to the jury. These circumstances have 
already been sufficiently alluded to. 

The second deduction is so inconclusive as to 
amount only to a presumption in the absence of 
circumstances indicating a contrary intention. The 
property may be in seller and the risk of delivery 
in the buyer. The presumption is that t^e risk 
and the property go together, but this presumption 
may be overthrown by agreement or by circum- 
stances indicating a contrary intention. Ordinarily, 
if by the terms of a sale, tlie seller engages to 
deliver the thing sold at a particular place, the 



118 NASHVILLE: 



Barker v. Freeland. 



jirice is not deraandable until such deliver^'' be 
made. But if the contract of sale is otherwise 
complete, and the circumstances indicate that the 
thing sold was to be in the meantime at the risk 
of the buyer, the latter would be bound to pay 
for it whether the property passed or not, if 
delivery was prevented without negligence of the 
seller. To this effect were the cases of Castle y. 
Playford^ L. R., 5 Exc, 165, and 7 Exc, 98; and 
Martineau v. Kitching^ L. R., 7 Q. B., 436; see 
also 1 Benj. on Sales, Sees. 374, 375, 377. 

The circumstances of this case to be observed 
in this connection are these : The fact that com- 
plainant bought a crop in the field; that he was 
to have his own agent attend to the tilling and 
sewing of the sacks; that he selected his own 
vehicles for containing tlie goods; and that at the 
field they were put into his own bags. These facts 
make a case where it might well be submitted to 
the jury as to the intention of the parties with 
respect to the risk of delivery on the cars, regard- 
less of whether the title pa&sed or not before such 
delivery. 

The charge, while technically subject to some 
criticism, submitted substantially, and in a very 
clear and inartificial way, the question of intention 
as to the risk of delivery. 

The decree must be affirmed. 



DECEMBER TERM, 1891. 119 



Franklin zj. Franklin. 



Franklin v, Franklin. 



{Nashville. January 14, 1892.) 



I. County Court, /s Court of general jurisdiction as regards administra- 
tion. 

Doctrine re-affirmed that the County Court is a Court of general juris- 
diction as regards administration upon the estates of decedents; and 
that its proceedings had in administration cases are entitled to. the 
protection of those rules and presumptions that obtain in favor of the 
judgments of Courts of general jurisdiction. [Post^p. 128,) 

Case cited and approved: Railway Co. v, Mahoney, 89 Tenn., 311. 



2. Administrator. Appointment of voidable^ not t'oid^ when. 

Appointment of administrator by County Court, upon the estate of a 
decedent as an intestate, is not void on collateral attack, but only 
voidable upon direct attack, where the decedent was not in fact an 
intestate, and his will was subsequently discovered and probated. 
{Post, pp. 126-132. ) 

Cases cited and approved: Pinkerton v. Walker, 3 Hay., 220; Baldwin 
V. Buford, 4 Yer., 20; Fay v. Reager, 2 Sneed, 200; Killebrew z/. 
Murphy, 3 Heis., 551; Johnson f. Gaines, i Cold., 288; Railway Co. 
V. Mahoney, 89 Tenn., 311 ; 8 Cranch, 9; 14 Peters, t^^. 

Cited and distinguished : Wilson v. Frazier, 2 Hum., 30; D'Arusment 
V. Jones, 4 Lea, 251. 

3. Statute of Limitations. Runs against decedents'^ estates^ wiien. 

And statutes of limitations run against such administrator upon all 
causes of action that had accrued to the decedent; and where such 
administrator is barred, the executor, subsetjuently appointed upon 
discovery and probate of the will, is also precluded by that bar. 
[Post, pp. 12S-132.) 



91 119 
•ifUft 126 



120 NASHVILLE : 



Franklin ?a Franklin. 



4. Same. Ten years bars suit for legacy. 

Suit brought against an executor for recovery of a legacy more than ten 
years after final settlement of his accounts in the County Court is 
barred by the statute of limitations of ten years. {Post^ /. 132.) 

Code: §3473 (M- & V.); §2776 (T. & S.). 

5. Same. Same. When settlement is final. 

In' 1877 the executor made full and final settlement of his accounts in 
the County Court, showing amounts due the legatees or distributees. 
In 1885 he collected a claim from the Federal Government due the 
estate, which had not been taken into account in the former settle- 
ment. In regard to this latter sum he had made no settlement when 
he was sued as executor by the legatees in 1891. 

Held: The settlement of 1877 was final in such sense that the statute 
of ten years began to run against legatees from its date, as to matters 
therein embraced, but not as to amount received by the executor in 
• 1885. {Post ^ pp. 12 2-12 J y 132.) 

Qtuere: Did suit, quia timely brought by claimants under will to impound 
and preserve the estate pending contest over probate of will, operate 
to arrest the running of statutes of limitations against them ? 

Case cited : Brown v. Brown, 14 Lea, 259. 

6. Same. Six years bars suit for legacy ^ when. 

If an executor, after final settlement, appropriates the fund left in his 
hands to his own use, by some unequivocal act, upon the claim, made 
in good faith and under color, that he is the lawful legatee or distrib- 
utee, then suit against him by the rightful legatee or distributee will 
be barred unless it is brought within six years after such appropriation 
of the fund by the executor. The statutes of three and ten years do 
not apply in such ca^e. But this rule does not obtain in favor of an 
executor who has not made settlement or unequivocally appropriated 
the fund as distributee. [Posty pp. 122-12J.) 

7. Will. Example of class doctrine. 

Testator bequeathed to his brother, whom he nominated as his executor, 
his entire estate, including a legacy due testator from his uncle's 
estate. Testator then added: ** He [the brother] is to have the 
interest arising from a proper investment of the money from my 
uncle's estate to do with as he pleases, but the principal is to go to 
his children in case he has anv. In case he dies without heirs I want 
my sister * * ^- to have it on same conditions." 



DECEMBER TERM, 1891. 121 



Franklin v. Franklin. 



Held: The brother takes a life-time interest in the fund, and that upon 
his death his surviving children take the corpus as a class. (Posi^ pp, 

'23-'33^ ^34') 
Cases cited and approved: Frierson r/. Van Buren, 7 Yer., 606; Sailer- 
field 7'. Mayes, 11 Hum., 58; Womack v. Smith, li Hum., 478; 
Bridgewater v. Gordon, 2 Sneed, 9. 



FROM SUMNER. 



Appeal from the Chancery Court of Sumner 
Countv. Geo. E. Seay, Ch. 

Chas. R. Head, James W. Blackmorb, 'R. K. 
Gillespie, and T. C. Mulligan for Ed N. Franklin. 

Jambs J. Turner, S. F. Wilson, and B. D. 
Bell for J; W. Franklin. 

Snodgrass, J. This is a suit to recover the 
interest of John Armfield Franklin in the estate 
of John Armfield, who died testate, in Grundy 
County, Tennessee, in 1871, leaving a large per- 
sonal estate to five legatees — testator's wife and 
four others. The widow dissented from the will, 
and took her interest under the law upon dissent, 
so that only the remainder of the estate was left 
to pass under the will. The four legatees entitled 
to it were the present complainants, Ed N". Frank- 
lin, John Armfield Franklin, Mrs. A. Vanbihber, 



122 NASHVILLE : 



Franklin z'. Franklin. 



and Mrs. B. Archer. One of these, John Arm- 
fieM Franklin, died in November, 1871. Ed N. 
FninkliH was appointed and qualified as adminis- 
trator of his estate December, 1876. John Arm- 
field Franklin had, in fact, died testate, but his 
, will was not discovered for many years thereafter, 
and not established, it being bontested, until several 
years later — facts to be more particularly stated 
hereinafter. 

The defendant, J. W. Franklin, was named as 
executor in the will of John Armfield. He qual- 
ified as such in the County Court of Grundy 
County October 2, 1871, and made a settlement 
of the estate with the Clerk of said Court July 
30, 1875. In this settlement he was. charged with 
$•27,342.99 and credited with $12,209.54, leaving 
balance then in his hands of $15,133.45. On Sep- 
tember 21, 1877, he made a final settlement, show- 
ing balance in his hands from former settlement, 
$15,133.45; collected since, $30,327.72; total, $45,- 
461.77; credits since, $14,228.35; due distributees, 
$ 1,232.82. Amount due the widow of this sum 
was $10,410.94, leaving $20,821.88 to pass under 
the will, or $5,205.22 to each of the three living 
legatees, and the same amount to J. W. Franklin, 
who was the father and distributee of the dead 
one, John Armfield Franklin. This sum he kept 
as such distributee and appropriated. The re- 
mainder he paid to the parties already named en- 
titled to it. AH the parties acquiesced in the 
settlement, and the present complainant gave his 



DECEMBER TERM, 1891. 123 



Franklin v. Franklin. 



receipt for balance in full due him under it 
December 24, 1877. 

In January, 1885, Defendant J. W. Franklin, 
as executor of John Armfield, collected a claim 
of his testator's estate against the United States 
Government of $18,000, which, after deducting ex- 
ecutor's compensation and attorney's fees paid for 
its collection, and paying the widow, left in his 
hands for distribution the sum of $1,890 for each 
living legatee and the distributee of John Armfield ' 
Franklin. He appropriated this $1,890 as such 
distributee, and he also applied the same amount 
due Ed ^. Franklin on debts which he held 
against Ed N. Franklin. The other legatees he 
paid in full. 

In the • meanwhile, about the time of the col- 
lection and disposition of this fund, a will of John 
Armfield Franklin was found. This will, which 
we quote for the purpose of construction herein- 
after, is as follows : 

" Wasuinuton, (iA., October, 1871. 

''This is my last will and testament. I will 
and bequeath to my brother, Edward N. Franklin, 
my entire estate, including my interest in my 
Uncle John Armfield's estate, my shotgun, Win- 
chester rifle, watch, gold-headed cane, and every 
thing that is mine. He is to have the interest 
arising from a proper investment of the money 
from my uncle's estate, to do with as he pleases, 
but the principal is to go to his children in case 
he has any. In case he dies without heirs, I 



124 NASHVILLE : 



Franklin ?'. Franklin, 



want my sister, Mrs. Adele Vanbibber, to have it 
on same conditions. I appoint my brother, Ed 
N. Franklin, to qualify as my administrator and 
act without bond. I want him to buy a ticket 
to Louisville, Ky., for Alice and give her $500. 

"J. A. Franklin." 

It was offered for probate at the April term, 
1885, of the County Court of Sumner County, was 
contested, and finally established as the will and 
ordered probated, and admitted to probate Api'il 
13, 1891, in the County Court, under decree of 
this Court pronounced March 6, 1891. When the 
will was admitted to probate Ed N. Franklin 
qualified as executor. On April 28, 1891, he pro- 
cured an order of the County Court annulling and 
revoking his appointment as administrator of the 
estate of John Armfield Franklin, which had been 
made, as before recited, on December 23, 1876. 

Before this will was admitted to probate, Ed N. 
Franklin, in his own name, and as next friend of 
his minor children, legatees under the discoveied 
will, filed a bill quia timet, alleging facts of dis- 
covery and pending contest of the will of John 
Armfield Franklin, and seeking to bring the ex- 
ecutor of John Armfield to a settlement. This 
bill was filed March 24, 1890. 

After the will was admitted to probate, and on 
April 29, 1891, he filed an amended and supple- 
mental bill as executor of said will, and as next 
friend of said minors, for same purpose — that is, to 
compel settlement by the executor, and to recover 



DECEMBER TERM, 1891. 125 

Franklin v. Franklin. 

the distributive share of John Armfield Franklin 
in John Armfield's estate, which, as we have before 
seen, had been received and appropriated by J. W. 
Franklin as distributee of the estate of his deceased 
and supposed intestate son. 

The defense was the statute of limitations of 
three, six, and ten years. By cross-bill defendant 
also sought to have his own claims against Ed K. 
Franklin set off against any recovery Ed N. might 
show himself entitled to as legatee of John Arm- 
field Franklin. 

Whether the first bill quia timet can be con- 
sidered as arresting from date of its filing the 
statute of limitations, as intimated such a bill 
might do in the case of Brown v. Brown, 14 Lea, 
259, and thereby make it in time to save the bar 
of the statute of six years, if J. W: Franklin 
must be treated as having held the $1,890 as dis- 
tributee and not as executor since it was received 
in Janu'ary, 1885, the Court deems it unnecessary 
to decide, though it does decide that six and not 
three years is the least time that could bar such 
action. By the majority so determining, the Court 
also holds that, sued as executor who had made 
final settlement in 1877, but none as to the last 
money of the estate received in January, 1885, the 
only statute which could be applicable in his favor 
was that of ten years. The question is whether 
that can be relied on as to final settlement of 1877. 
The Chancellor held it could not, and defendant 
appealed. 



126 NASHVILLE : 



Franklin v. Franklin. 



The theory upon which it is now insisted by 
complainant that this statute did not run, is that 
the appointment of Ed X. Franklin as administra- 
tor of estate of John Armfield Franklin in 1876 
was void, and that, therefore, there was no one 
capable of suin^ until the appointment and quali- 
fication of the executor in 1891. 

The first appointment is assumed to be void 
because John Armfield Franklin did not die in- 
testate^ and it is insisted that the County Court 
therefore had no jurisdiction to appoint an admin- 
istrator. If the contention be true that the ap- 
pointment was void, then the statute did not run. 
If the appointment was valid — if only voidable — the 
statute did run; and this is the main question in 
the case. The appointment was not void. This 
question is not an open one in this State. Pinker- 
ton V. Walker, 3 Haywood, 220; Baldwin v. Buford, 
4 Yer., 20. 

In England, at common law, the rule prevailed 
that an appointment of an administrator by the 
ordinary, made in derogation of the right of an 
executor qualified or acting with or without pro- 
bate of the will (for there he could do almost all 
the acts incident to his oflicc except some relating 
to suits before probate: 1 Williams on Executors, 
top paging 338-347, 6th Am. Ed.), or who had not 
renounced the trust, or from whom the will had 
been concealed (by party obtaining letter, as ex- 
plained by Judge Freeman in dissenting opinion 
in Brown v. Broivn, 14 Lea, 383) was void. See 



DECEMBER TERM, 1891. 127 

Franklin v. Franklin. 

'  I —  I 1^   I - - - ■■^.    .    ^ - —■  .—III, ■» 

Williams, ou Executors, Vol. I., Book 6, Ch. 3, 
top page 655, 6th Am. Ed. 

The rule was recognized at least to the full 
extent in case of an appointment where there were 
living executors appointed and qualified and capable 
of acting, in two cases in the Supreme Court of 
the United States. Griffith v. Frazier, 8 Cranch, 
9 (Lawyers' Co-op. Ed., Book 3, p. 471); Kane v. 
Paul^ 14 Peters, 33 (Lawyers' Co-op. Ed., Book 
10, p. 341). 

But in the former it was distinctly recognized 
as the rule that if a Court grant administration 
where there is an executor who has not qualilied, 
its act, though erroneous, is valid until repealed 
(pages 25, 26), and the latter refers to this case as 
authority. Both are digested as deciding this 
principle by legitimate deduction in the Indexed 
Digest of Supreme Court Reports, Vol. L, p. 793. 

•Here there is no cause for the application of the 
English doctrine of "concealment" if the entire 
rule on that subject prevailed in this State, because 
there was no pretense that the will was concealed 
by defendant or any one else. 

But in the 4 Yerger case already cited Judge 
Catron points out the distinction between the ex- 
ecutor's right derived almost exclusively from the 
will under the English law, and his right under 
our law as aftected by statute, and shows the 
English rule so 'founded not applicable here (pages 
19, 20, 21). And the distinction is further elabo- 
rated in Fay v. Reager, 2 Sneed, 200, and KUle- 



128 NASHVILLE: 



Franklin v. Franklin. 



breio V. Murphy, 3 Ileis., 551; the latter case 
probably going too far in assuming the existence 
of certain power in the executor in advance of 
qualification, though the power did exist in the 
same person as widow, and hence the case was on 
this point correct upon its facts. 

Under our law the County Court is a Court of 
general and exclusive jurisdiction on the subject of 
administration ; and when it makes an appointment 
of an administrator on the estate of a deceased 
resident of this State, the appointment is valid 
until revoked. 

Residence in a given county, like intestacy, is 
made a requisite of the pow^er to appoint, and it 
has been said an appointment made by the County 
Court of a county in which a deceased had no 
residence at time of death is void. Wilson v. 
Frazier, 2 Hum., 30. 

But the term was inaccurately used for voidable, 
for the Court, in the very case in which it was 
used, held that it was only voidable, and that to 
adjudge it void there must be a contest in the 
Court where made; and this exact point was after- 
ward decided in the case of Johnson v. Gaines^ 
EjcVy 1 Cold., 288, and again explicitly determined 
in the case of Railroad Company v. Mahoney, 5 
Pickle, 311. 

There it was said that the County Court was au- 
thorized to determine for itself the existence of the 
facts which authorized the appointment, and, having 
done so, the appointment was not void. Page 318. 



DECEMBER TERM, 1891. 129 

Franklin v. Franklin. 

It is true that in that case there was no ques- 
tion of intestacy, and the question was one of 
residence or inhabitancy, aild the principle was not 
extended there beyond the case of an admitted 
intestate; but intestacy, like inhabitancy, is one of 
the facts the County Court must determine, and 
the two questions fall together within the power 
of the Court to settle when the appointment of 
an administrator is asked. When the appointment 
is made, both are adjudged, and that is conclusive 
until reversed or vacated. Schlater v. Baiijc, Law- 
yers' Reports, Annotated, Book 5, pages 513, 514, 
and authorities cited. 

In the Schluter case, which was a well-con- 
sidered one where many authorities were referred 
to in argument and by the Court, the Court said; 
"Our attention has been called to no case, and we 
are confident that none can be found, holding that 
the subsequent discovery of a* will, and its admis- 
sion to probate, renders the prior appointment of 
an administrator absolutely void, so as to give no 
protection to persons who in dealing with the ad- 
ministrator have acted on the faith thereof." Page 
513, citing further Woerner on Administration, 
pages 568, 571, 588. 

It would have been more nearly correct, if not 
absolutely so, to have said: '*No modern case can 
be found so holding." See also 4 Ohio, 138; 58 
Maine, 225; 31 Maine, 504. 

Like intestacy, as we have seen, the question 

of residence has been treated as a jurisdictional 
9— 7p 



130 XASHVILLE: 



Franklin v. Franklin. 



one, and there are cases cited in the books in 
which it has been held that finding it incorrectly 
by the Court authorized to make the appointment, 
rendered the appointment void. There were a 
number of these cases in Massachusetts. See cases 
collected in 1 Williams on Executors, top page 
631, 6 Am. Ed., note C. 

But the rule is now changed in that State by 
statute to meet the hardship involved in such a 
judicial view (Ibid.)^ and specially opinion in Record 
V. Howard^ 58 Maine, 225. 

The only apparent qualification of that doctrine 
(for it is not really so) is the appointment of an 
administrator on the estate of a living man, for 
this is universally held void, and that upon the 
ground that no Court is vested with such juris- 
diction. Railroad Company v. 3faloney, 5 Pickle, 
319; Moore v. Smithy 73 Am. Dec, 122, and notes; 
47 Am. Rep., 458, and notes; 107 111., 517. 

Death is the one fact which must exist to give 
any Court jurisdiction. When it exists the others 
of residence and intestacy are open to proof. If 
decided erroneously the appointment may be void- 
able, but is not void. One Court went to the 
extent of holding that erroneous ascertainment of 
this fact did not make such an appointment void. 
But subsequently the same Court held that ap- 
pointment void, it appearing that the Court in 
fact had not received evidence of it. Roderigas 
V. East River Savings Institution, 32 Am. Rep., 
309 {N. F.). 



DECEMBER TERM, 1891. 131 



Franklin v. Franklin. 



When the question first arose in this State, it 
was by a divided Court that it was settled ad- 
versely to the validity of such appointment where 
the fact of death was found incorrectly in the ap- 
pointment. 4 Lea, 251. But it is obvious from 
that case that such fact was the onlv one the 
non-existence of which would render such appoint- 
ment absolutely void. 

To the same effect, as the question is now 
settled that the action of the County Court mak- 
ing the appointment is only voidable and not void, 
are the cases of Varnell v. Loague, 9 Lea, 158; 
Posey V. Eaton, 9 Lea, 504; Brown v. Brown, 14 
Lea, 253; State v. Anderson, 16 Lea, 321. 

There were three cases determined together in 
the last opinion. The facts of all are not given, 
but among the cases in which Anderson's appoint- 
ment was held not void was one in which there 
was a will naming an executor. ^o distinction 
was taken as to the validity or invalidity of 
Anderson's appointment as administrator on this 
account, because, though the question was made, 
the Court held that none existed. Counsel cite 
other unreported cases to same effect. 

We think no question is better settled in this 
State, and in the current of modern authoritv, or 
upon sounder reason. Wills may frequently be 
made and lie, as this, for years without discovery. 
The exercise of the jurisdiction of appointment ol' 
an administrator would be always unsafe and un- 
certain if the appointment was to be rendered 



132 NASHVILLE: 



Franklin v. Franklin. 



void ab initio by the discovery of a will. The 
evils attendant upon such a rule are far greater 
than can possibly result from' the contrary holding. 
It were better that rights thus acquired should be 
settled by the statute of limitations than that 
parties should never acquire any in cases of ad- 
ministration, or never be sure that those supposed 
to have* been acquired were in fact so. 

The old English rule to the contrary was in 
1857 changed there by statute 20 and 21 Victoria, 
Chapter 77, Section 75, cited in 1 Williams on 
Executors, 6th American Edition, pages 619, 632, 
639. And so it is generally changed where it 
ever prevailed in the American States by effect of 
statutes making executor's power depend on Court 
appointment and qualification. 7 Am. & Eng. Ency. 
of Law, p. 193, and notes; 1 Williams on Ex- 
ecutors, top page 347, and notes, 6th Am. Ed. 

The settlement made in 1877 was final in the 
sense of the statute, notwithstanding years after 
another claim due the estate, not therein included, 
was collected by the executor; and suit to recover 
balance due in that settlement could not be sus- 
tained after ten years. As neither bill in this 
cause was filed within ten years of that date, no 
recovery can be had on that account. The money 
received in January, 1885, was within ten years of 
the filing of either bill, and recovery, therefore, 
can be had as to the $1,890 due as John Arm- 
field Franklin's proportion of that fund. 

The complainant wMU therefore, as executor of 



DECEMBER TERM, 1891. 133 



Franklin v, Franklin. 



John Armfield Franklin, recover this amount with 
interest from the date it came to the hands of 
defendant as executor of John Armfield. He will 
recover interest because there was nothing to pre- 
vent a payment of that fund at that time, as there 
was a party in existence capable of receiving it — 
the representative of John Armfield Franklin's es- 
tate. 

After it is received, complainant, ae legatee, has 
an interest, but what that interest is can only be 
ascertained after settlement of expenses of the 
estate incurred in litigation — it seems there are 
no debts or other charges against the estate. But 
it is obvious that large expenses have been in- 
curred in establishing the will and prosecuting this 
cause, and it is only out of the net surplus that 
the legacy is to be settled. Of whatever this may 
be, complainant will be entitled to a life estate, 
and defendant to a set-off as to this, on account 
of his debts established as decreed by the Chancellor. 

The corpus of the fund remaining after settle- 
ment of expenses and charges indicated, will, on 
the expiration of the life estate of Ed N. Frank- 
lin, belong to his surviving children, who take as 
a class under the will, the bequest being to a 
class of persons subject to fluctuation by increase 
or diminution of its number in consequence of 
future births or deaths, and the time of payment 
or distribution of such fund being fixed at a sub- 
sequent period on the happening of a designated 
event, and the bequest being of an aggregate fund 



134 NASHVILLE : 



Franklin v. Franklin. 



given to the childpeii as a unit and passing a 
joint interest. 7 Yer., 606; 11 Hum., 58, 478; 2 
Sneed, 9. 

The word "heirs" used in the will is manifestly 
used in the sense of children. 

The cause will be remanded for an account to 
ascertain the amount, if any, which may be the 
subject of set-off in favor of defendant. 

The costs of the cause accrued below will be 
paid two-thirds by defendant and one-third by 
complainant; that of this Court will be equally 
divided between them, both having appealed and 
assigned errors. The amount charged to complain- 
ant may be paid out of the fund recovered to be 
administered. 



DECEMBER TERM, 1891. 135 



Insurance Co. v. Trustees C. P. Church. 



Insurance Co. v. Trustees C. P. Church. 
{Nashville. January 16, 1892.) 

m 

1. Charge of Court. J^equirement of writUn charge upon request in civil 

case mandatory. 

The statutory requirement is mandatory that the trial Judge shall, upon 
the request of either party to a civil case, ** reduce every word in his 
charge to writing before it is delivered to the jury," etc.; and the 
Court's failure to comply strictly with such request constitutes rever- 
sible error, although it- does not appear that exception was taken on 
that account in the lower Court, or that any injury thereby resulted. 

Code construed: §3672 (M. & V.). 

2. S VME. Same, Example of inolation of statute. 

And it constitutes a violation of this statutory requirement, for which 
the case will be reversed, where the Court, before reading his charge 
to the jury, said to them orally: "Gentlemen of the jury: You are 
to try this case upon the sworn testimony of the witnesses who have 
been introduced; if you know any thing about the matter in contro- 
versy between the parties, or any thing in relation to any matters 
about which any witness has testified, you will not communicate any 
such matter to any of your fellow-jurors; nor will you allow any 
thing which you may know about the matter of your own knowledge 
to influence your verdict in the case. You must try the case alone 
upon the sworn testimony of the witnesses and other proof intro- 
duced before you, and the charge of the Court which I will give you 
in writing; and you are not to suffer any one to talk to you about the 
cause." Such language is appropriate for the charge, and must be 
written. 



FROM RUTHERFORD. 



Appeal in error from Circuit Court of Rutherford 
County. Robert Cantrell, J. 



136 NASHVILLE : 



Insurance Co. r*. Trustees C. P. Church. 



C. A. Sheafe and Stokes & Stokes for Insur- 
ance Co. 

McLemore & Richardson and H. E. Palmer for 
Trustees C. P. Church. 

Lea, J. Upon the trial of this cause, before any 
evidence was submitted to the jury, the plaintiff in 
error requested the Court to deliver his charge to 
the jury in writing. After the argument of the 
case had closed, the Judge said orally as follows: 

"Gentlemen of the jury: You are to try this 
case upon the sworn testimony of the witnesses 
who have been iiitroduced; if you know any thing 
about the matter in controversy between the parties, 
or any thing in relation to any matters about 
which any witness has testified, you will not com- 
municate any such matter to any of your fellow- 
jurors; nor will you allow any thing which you 
may know about the- matter of your own knowl- 
edge to influence your verdict in the case. You 
must try the case alone upon the sworn testimony 
of the witnesses and other proof introduced before 
you, and the charge of the Court which I will 
give you in writing; and you are not to suffer 
any one to talk to you about the cause." 

lie then proceeded to give his writteiji charge 
to the jury. The request for a written charge 
was made under the Act of 1875 (M. & V. Code, 
§3672), which is as follows: "On the trial of civil 
cases in the Courts of this State, it shall be the 



DECEMBER TERM, 1891. 137 



Insurance Co. v. Trustees C. P. Church. 



duty of the Judge before whom tVie same is tried, 
at the request of either party, plaintift' or defendant, 
to reduce jevery word in his charge to writing 
before it is delivered to the jury, and all subse- 
quent instructions which may be asked for by the 
jury, or which may be giveri by the Judge, shall 
in like manner be reduced to writing before being 
delivered to the iurv." 

This section is nearly the same as § 6052 of the 
Code (M. & V.) in regard to* felony cases, only in 
all felony cases it is made the duty of the Court 
to reduce every word of the charge to writing, 
while this section imposes the same duty upon the 
Judge when the charge is requested in writing. 
This Coutt in several cases have passed upon the 
felony statute, and have declared that it was im- 
perative; that the charge must be given in writ- 
ing, and upon failure this Court would reverse; 
and that we could not even inquire if the party 
was in any manner injured thereby. This statute, 
when a plaintiff or defendant requests that the 
charge be in writing, is as imperative as the 
felony statute. It provides that when a written 
charge is requested, that the Judge is "to reduce 
every word of his charge to writing before it is 
delivered to the jury." But it is insisted that 
what was said orally were directions and caution- 
ary instructions to the jury, and not a charge; 
that a charge, as defined by Bouvier, is "the ex- 
position by the Court to the jury of those prin- 
ciples of the law which the latter are bound to 



138 NASHVILLE : 



Insurance Co. v. Trustees C. P. Church. 



apjily in order to render such a verdict as will, 
in the state of facts proved at the trial to exist, 
eBtiiblish the rights of the parties to the suit." 

To tell the jury that they must try the case 
upon the sworn evideilce of witnesses, independent 
of their own knowledge of facts known to them 
but not proven, and such, knowledge was not to 
influence them, was an exposition of the law not 
only applicable to this case, but every other case, 
and when the Court undertakes to charge this 
general principle it must do so as the statute 
directs. Suppose the jury, after the charge, had 
asked this instruction, or counsel had requested 
the Court to charge the oral statements made to 
the jury, can it be pretended that it would not 
have been error in the Judge not to have reduced 
it to writing — the statute requiring him ''to reduce 
every word of his charge to writing before it is 
delivered to the jury, and all subsequent instruc- 
tions which may be asked for by the jury, or 
which may be given by the Judge, shall in like 
rnauner be reduced to writing before being delivered 
to the jury." If this be true, w^hy is it not error 
just preceding his written charge? The very 
object of the statute, to prevent any oral instruc- 
tions to the jury by the Judge, would be defeated 
by postponing the formality of the reading of his 
written charge until he is through with his oral 
in^structions. 

The reason of the law was that all that was 
said to the jury in regard to the case might 



DECEMBER TERM, 1891. 139 



Insurance Co. 7j. Trustees C. P. Church. 



appear before the appellate Court just as it oc- 
curred in the trial Court. It results, therefore, that 
the oral instruction or statement given should have 
been embodied in the written charge. But it is 
insisted that the action of the Court was not ex- 
cepted to at the time, and a new trial was not 
asked, for such error on the part of the Court, 
and, on account of this failure, no exceptions can 
be taken here. The entry upon the minutes simply 
recites that the motion for a new trial was over- 
ruled, and no reasons for the new trial were set 
forth either in the entry or in the bill of ex- 
ceptions. The plaintiif in error may assign any 
reason, in this Court, appearing in the record as 
a ground of error when the record simply shows 
the motion for a new trial was made and over- 
ruled. 

The judgment for this error will be reversed, 
and case remanded for a new trial, and defendant 
in error will pay the cost. 



140 NASHVILLE : 



State V. Hawkins. 



State v. Hawkins. 

« 
{Nashville. January 16, 1892.) 

1. Bill of Exceptions. Essential in Chancery cause tried by Jury. 

If a cause has been determined in Chancery Court by jury trial, the 
charge of the Court, and the evidence and affidavits introduced in 
the lower Court, cannot be considered upon appeal to this Court, 
though copied into the transcript by the Clerk, unless they have been 
made part of the record by proper bill of exceptions. 

Code construed: H3872, i^^y^ (M. & V.); ^^3155, 3156 (T. & S.). 

Cases cited and approved: James v. Brooks, 6 Heis., 150; Bank v. 
Oldham, 6 Lea, 729; Railroad v. Foster, 88 T«nn., 671. 

2. Same. Papers that are not part of. 

Papers copied into transcript that do not purport to be part of bill of 
' exceptions constitute no part of the record. 

3. Same. Want of Judge"* s signature fatal. 

Unless bill of exceptions has been duly authenticated by the trial Judge's 
signature, it cannot be treated as part of the record, although there 
be a recital in the record that the bill of exceptions had been signed 
by the Judge and made part of the record. 

Cases cited and approved: Garrett v. Rogers, i Heis., 320; Wynne v. 
Edwards, 7 Hum., 419. 



FROM CANNON, 



Appeal from Chancery Court of Cannon County. 
B. M. Webb, Ch. 



DECEMBER TERM, 1891. 141 



Stale V, Hawkins. 



Attorney-general Pickle and Murray & Spurlock 
for State. 

Jones & Houston and James H. Cummxngs for 
Hawkins. 

Lurton, J. The cases of the Statt v. J, B, 
Hav^kins and Wm. McMahon and State v. J. B, 
Hawkins and J. B. Smith were consolidated and 
ordered to be heard together. 

A decree of the September Term, 1890, recites 
that the attorneys for the State demanded a jury 
to try the issues of fact to be submitted, and that 
a jury was duly impaneled and sworn to try the 
issues tendered and a true verdict render. 

The bills of the State alleged, in substance: 

First, — That an application was made to the 
Comptroller for pensions, under the Act of 1887, 
by the defendants J. B. Smith and Wm. McMahon; 
that J. B. Smith represented in his application, 
and affidavits accompanying the same, that he had 
lost the use of both of his legs while engaged in 
actual service of the Confederate Government, and 
had continued without the use of his legs ever 
since. 

That Defendant McMahon, in his said application 
and accompanying affidavits, alleged that he had 
lost both of his eyes while engaged in the same 
service, and had remained blind since. 

Second. — That the representations in said appli- 
-cations were in fact wholly false and untrue, and 



142 NASHVILLE : 



State V. Hawkins. 



that the said Smith had not in fact lost the use 
of his legs, nor the said McMahon the use of his 
eyes. 

Third, — The bills further charged that the de- 
fendant, Hawkins, as Chairman of the County Court 
of Cannon County, did indorse upon said appli- 
cations and certify to the Comptroller that he had 
examined said applicants for pensions, and also the 
witnesses making the affidavits in support of the 
applications, and from his said examination the 
applicants came wjthin the provisions of the Act, 
and were entitled to the pensions as provided by 
law; that at the time of making this certificate 
the said Hawkins knew the same was false, and 
that Smith still had the use of his legs and Mc- 
Mahon the use of his eyes. 

Fourth. — That in addition to these false certifi- 
cates said Hawkins personally presented said appli- 
cations and affidavits to the Comptroller, and rep- 
resented to that officer that of his own knowledge 
he knew the facts stated in the applications and 
affidavits to be true. 

Fifth, — The bills allege that by reason of these 
false and fraudulent applications, certificates, in- 
dorsements, and representations, a pension had been 
granted to each of the applicants, and $825 had 
been thus fraudulently obtained from the State by 
Defendant Smith, and $1,325 by Defendant Mc- 
Mahon. 

Sixth, — That said Hawkins had been induced to 
aid said fraudulent applications, and to make false 



DECEMBER TERM, 1891. 148 

State V. Hawkins. 

certificates and representations, upon an agreement 
and understanding that he was to receive a pecu- 
niary compensation out of the fund to be derived 
thereby. The bills sought decrees against Smith 
and Hawkins, and McMahon and Hawkins for the 
sums thus obtained. The issues of fact submitted 
to the jury involved the truth or falsity of every 
question of fact presented by the issues made in 
the pleadings. Upon evidence submitted the jury 
found that the applications and accompanying affi- 
davits were true; that the certificate made by 
Defendant Hawkins was true; that the affidavits 
presented by said Hawkins to the Comptrollor were 
true, and not false as charged. They also found 
that said Hawkins had received nothing to in- 
fluence him to sign the certificates or procure the 
pensions. A decree in the cause recites in full 
the findings of fact by the jury, and then proceeds 
as follows: "When the Court is of opinion that 
the findings of the jury upon the facts are correct. 
The Court is of further opinion that the allegations 
of the bill are met and denied by the answer and 
not sustained by the proof." The bills in the two 
cases were therefore dismissed. From this decree 
the relator has for the State prayed and obtained 
an appeal. From what we have stated it must be 
manifest that unless the evidence heard by the jury 
and the charge of the Court are properly parts of 
the transcript that this appeal must prove inefl:ect- 
ual. Section 3872 (M. & V.) provides for a broad 
appeal "from the judgment or decree of the Circuit 



144 NASHVILLE : 



State V. Hawkins. 



or Chancery Court, in a matter of equity tried 
according to the fornifi of tlie Chancery Court," 
and that in such case the appellant shall "have a 
re-examination" in this Court of 'Hhe whole matter 
of law and fact appearing in the record." 

By the next section the following provision is 
made: "Issues of fact in Chancery, made up on 
demand of either party, and tried by jury accord- 
ing to the forms of a Court of Law, are not em- 
braced in the foregoing section, and errors in the 
proceedings therein can only be corrected as errors 
are corrected in actions at law." 

This provision has been construed as requiring 
that the verdict of a jury on issues of fact sub- 
mitted to them in Chancery shall be given the 
same weiglit as in a Court of Law, and that until 
set aside it is equally conclusive. It has also been 
construed as requiring the dissatisfied party who 
seeks a correction of errors, either in the admission 
or exclusion of evrdence or in the charge or in 
the refusal of a new trial, to make up a bill of 
exceptions as at law. . James v. Brooks, 6 Heis., 
150; Bank v. Oldham, 6 Lea, 729. 

Neither the evidence nor the charge nor the 
rulings on evidence have been made a part of the 
record by bill of exceptions. The decree granting 
appeal does recite that the appellant tendered his 
bill of exceptions, which was ordered to be made 
part of the record. This is the usual judgment 
entry, but in fact no bill of exceptions appears to 
have been signed by the Chancellor. An enormous 



DECEMBER TERM, 1891. 145 

State V, Hawkins. 

mass of evidence, consisting in part of depositions 
and in part of what purports to have been oral 
evidence, is embraced within the transcript. 

On page 49, preceding this evidence, is such a 
recital as usually precedes a bill of exceptions, be- 
ing a recital that "on the trial of the issues sub- 
mitted to the jury in this cause, the following 
issues of fact and oral proof was introduced by 
the complainant/' Then follow indiscriminately 
depositions, interlocutory rulings, affidavits, and oral 
evidence. 

On page 367 this evidence concludes without 
any statement that this was the whole of the 
evidence submitted to the jury, or any signing of 
the same as a bill of exceptions, or statement that 
it is intended as such. This is immediately followed 
by the caption of the. Court, and then by a decree 
setting the causes for trial "on a particular day of 
the term. This is followed by a decree ordering 
an attachment to^ issue for a derelict vt^itness, and 
this by an affidavit of counsel asking for an attach- 
ment, and this by the writ of attachment and re- 
turn thereon. Next comes a paper styled "charge 
of the Court." This charge is signed "B. M. 
Webb, Chancellor." But nothing here purports to 
make it, nor the evidence preceding, a part of a 
bill of exceptions. 

We are therefore constrained to hold that neither 

the evidence nor the charge nor the action of the 

Court upon the motion to discharge a juror, are 

properly parts of the record. 
10—7 p 



146 NASHVILLE : 



State V. Hawkins. 



Merely copying a charge into a transcript has 
been repeatedly held as not making it a part of 
the record. It must be made so by bill of ex- 
ceptions. Railroad v. Foster^ 88 Tenn., 671, and 
cases cited. 

We have no authentication by the Judge of 
what the Clerk has inserted as evidence heard by 
the jury. A bill of exceptions, not signed by the 
Judge as a bill of exceptions, cannot be treated as 
a part of the record, though there be record re- 
cital that one was signed and made a part of the 
record. Garrett v. Eogers, 1 Heis., 820; Wynne w 
Edwards, 7 Hum., 419. 

Decree affirmed. State will pay all costs of 
cause. 



DECEMBER TERM, 1891. 147 



Davis, Adm'r, v, Garrett. 



Davis, Adm'r, v, Garrett. 
{Nashville. January 21, 1892.) 

I. Gift. Of slave b} deed valid without delivery. 

The gift of a slave or other chattel made by deed duly executed and 
delivered is valid and effectual between the parties without delivery 
of the thing given — e. g.^ a father's deed of gift of a slave to his 
infant daughter passes title to the daughter without actual delivery 
of the slave, the daughter and slave being members oi\ the donor's 
household and remaining in his family until the latter was emanci' 
pated. 

Cases cited and approved: Gaines v. Marley, 2 Yer., 582; McEwen v. 
Troost, I Sneed, 186. 



2. Deed. Proof of delivery. 

Proof of delivery of deed is prima facie sufficient, where it is shown 
that the grantor procured registration of the deed and left it in the 
register's office during the remainder of his life — the instrument be- 
ing a deed of gift from a father to his daughter, an infant of tender 
years residing in his family. 

Cases cited and approved: Martin v. Ramsey, 5 Hum., 350; Corley v. 
Corley, 2 Cold., 524; Thompson 7>. Jones, i Head, 576; Tompkins v. 
Bamberger, 3 Lea, 576. 

Cited and distinguished : Mason v. Holman, 10 Lea, 315. 

3. Same. • Same, 

And from the unexplained fact of registration it will be presumed that 
it was done by the grantor's procurement and authority. 

4. Infant. Acceptance of deed. 

Infant's acceptance of deed will be presumed, if, viewing the trans- 
action as of the date of the deed, it clearly appears to have theo 
been for his benefit that it should be accepted. 



148 NASHVILLE : 



Davis, Adm'r, v. Garrett. 

5. Same. Same. 

After the infant's acceptance of a deed has once attached in contem- 
plation of law, the subsequent loss of the property conveyed cannot 
annul that acceptance. 



FROM MARSHALL. 



Appeal from County Court of Marshall County. 
W". J. Leonard, J. 

CowDBN & Turney for Mrs. Daniel. 

P. C. Smithson for Mrs. Bryant. 

 

LuRTON, J. This case is here alone upon the 
appeal of Mrs. Cordelia Bryant from a d» cree of 
the County Court charging her with the value of 
a negro slave as an advancement. In 1859 Mrs. 
Bryant's father made to her a deed of gift to a 
shive girl nine years of age. 

The donee at date of this deed was but about 
seven years of age, and residing with her father, 
where she continued to reside until her marriage 
more than ten years afterward. The subject of 
the gift wa? then and continued upon the premises 
of the donor until she voluntarily left after close 
of the Civil War and her emancipation. 

This deed was signed by the father and attested 
by three witnesses. A few days after its date the 



DECEMBER TERM, 1891. 149 



Davis, Adm'r, v. Garrett. 



donor personally acknowledged its execution before 
the Clerk of the County Court, and within a few 
days thereafter he caused it to be registered. After 
registration the original deed was left in the Reg- 
ister's office, where it was found pending the trial 
of the questions arising upon an account of ad- 
vancement. 

The objections urged to the decree charging 
this gift as an advancement are : 

First. — That the slave was never delivered into 
the possession of the donee. Possession must be 
according to the nature of the thing given and 
the circumstances and situation of the parties and. 
subject. Here the donor was the father. The 
donee was his own child, of tender years and 
residing with him. The subject of the gift was 
a young female slave, a member of his own house- 
hold. The child had no trustee or guardian other 
than her natural guardian, her father. Under such 
circumstances, no actual, manual delivery was pos- 
sible. He could only make the gift by executing 
such legal instrument as was necessary, under the 
law, to pass the title. 

The gift of a chattel or slave by deed duly 
executed and delivered is valid at the common law 
though there be no actual delivery of the thing 
given. This has long been regarded as settled by 
our decisions. Caines v. Marley, 2 Yer., 582; 
McEwen v. Troost, 1 Sneed, 186. 

In the case last cited the facts were that Dr, 
Troost executed a deed of gift to his two children, 



1 50 NASHVILLE : 



Davis, Adm'r, v, Garrett. 



conveying a valuable geological cabinet and library, 
and caused the deed to be registered. He remained 
in possession until his death. In a contest over 
the title between the donees and the administrator 
of the father that of the donees prevailed. 

Second. — It is next urged that the deed was 
never delivered. This deed was either registered 
by direction of the donor or by direction of some 
one to whom he had delivered the deed. One of 
these propositions must be presumed from the un- 
explained fact of actual registration. Assuming the 
registration to have been the act of the donor as 
the most probable, it is urged that this is not 
delivery. 

Delivery of a deed is undoubtedly essential to 
its due execution as a deed. But it has been 
repeatedly held that this delivery need not be 
formal, or into the hands of the grantee or some 
one for him, if the circumstances are such as to 
make it clearly appear that the intention of the 
maker was .that the deed should take eftect with- 
out such delivery. Martin v. Ramsey^ 5 Hum., 
350; Corky v. Corley, 2 Cold., 524. 

Whether the mere execution of a deed and 
delivery to the Register would amount to a de- 
livery was stated to be a question of doubt by 
Judge Caruthers in Thompson v. Jones, 1 Head, 
576. This doubt seems to have deepened by the 
intimation of Judge Cooper in Thompkins v. Bam- 
berger, 3 Lea, 576. 

It may be assumed from our cases that the 



DECEMBER TERM, 1891. 151 



Davis, Adm'r, v. Garrett. 



mere leaving a deed in the oflSce for registration, 
without other circumstances, would be insufficient 
evidence of a delivery to the grantee. Yet, if it 
appear that the grantor directed it to be recorded, 
"we should consider that equivalent to actual de- 
livery and acceptance," said Judge Totten in Mc- 
JEwen V. Troost. In the subsequent case of Thomp- 
son V. Jones^ this language was considered by the 
Court, and the conclusion reached that "the exe- 
cution of the deed and procuring its registration 
would not be conclusive of delivery; but it would 
devolve upon the other side the necessity of prov- 
ing that she did not intend it as a final delivery, 
but that it was her purpose still to hold it in 
her power, and that it should not take eftect 
while she lived, or only upon some condition or 
contingency." 1 Head, 576. 

The case of Mason ^ Holman v. Holman^ 10 
Lea, 315, has been strongly relied upon by counsel 
for appellants as holding that registration of a deed 
of gift by the grantor is not sufficient evidence 
of delivery. That case goes to the verge of the 
law, and should be limited to its facts. The opin- 
ion does not overrule the two cases we have just 
cited, nor refer to them. There, though the do- 
nor did register the deeds, yet it is shown that 
after registration he recovered the original deeds 
and held them in his possession until death. The 
case is to be further distinguished in that there 
was. evidence of a prior parol gift upon terms dif- 
fering from those contained in the deeds. The 



152 NASHVILLE : 



Davis, Adm'r, v. Garrett. 



donees were married women, and are shown to 
have known nothing of the deeds. Here the deed 
was suftered, after registration, to remain in the 
Register's office. The donee was incapable, of un- 
derstanding the transaction, and a formal delivery 
of the deed to her would have been so extremely 
formal as to have been farcical. 

The latest case on the subject is that of Stviney 
V. Swiney^ 14 Lea, 316. There the Court re-affirmed 
the doctrine of McEwen v. Troost and Thompson 
V. JoneSj and held that when the grantor causes 
the actual registration of the deed, it constitutes a 
prima facie case of delivery. The act of registra- 
tion, upon direction of the grantor, is highly sig- 
nificant of his purpose to give effect to his deed. 
He has thereby put it beyond his power to recall 
the instrument from the public records, and give 
creditors and purchasers notice of the state of the 
title. It ought to require strong circumstances to 
rebut the presumption of delivery arising from 
such conduct. 

If the deed contained any burdensome or unu- 
sual provisions, a question might arise as to ac- 
ceptance by the donee. But when the donee is 
incapable of exercising any discretion in the mat- 
ter, and the conveyance is clearly beneficial, the 
law will presume an acceptance. Were it other- 
wise, an infant, for want of power, would be in- 
capable of receiving a benefit conferred by deed. 

Under the facts of this case, and looking at 
this transaction as it stood at the date of this 



DECEMBER TERM, 1891. 153 

Davis, Adm'r, v. Garrett. 

gift, it was manifestly to the interest of the do- 
nee that this . gift should be accepted. The sub- 
sequent emancipation of the slave cannot affect the 
judgment of the law upon the facts as they were 
at the time the deed became operative. 
Affirm the decree with costs of appeal. 



154 NASHVILLE : 



Tennessee Manufacturing Co. v, James. 



Tbnnbssee Manufacturing Co. v. James. 



{Nashville. January 26, 1892.) 



I. Contract of HtRtNG. Of infants services by joint contract of parent 
and child. Emancipation. 

A father and his infant daughter joined in contract, hiring the latter's 
services to a third person for a stipulated compensation to be paid to 
the daughter, ** subject to all the conditions of this contract." The 
contract of hiring contained a condition that the employe should 
give two weeks' notice of her intention to quit, and that for her fail- 
ure to give such notice, or to continue work during the two weeks, 
she should forfeit a stipulated amount as liquidated damages, to be 
deducted out of her wages then due. The daughter quit service 
without excuse and in violation of this condition, and sued to recover 
for value of her services independently of this contract. The em- 
ployer interposed this contract as defense to the extent of the stip- 
ulated damages. 

Held — That the daughter's emancipation was only partial and condi- 
tional, and that the stipulation for liquidated damages, if otherwise 
fair and reasonable, was valid and binding as the father's contract 
under his reserved right in the contract to his daughter's wages. 

Cases cited : Cloud z\ Hamilton, ii Hum., 105; 35 Am. Rep., I17. 



2. Same. Example of valid stipulation for liquidated damages. 

The stipulation in a contract of hiring that the employe quitting serv- 
ice without excuse and without giving a specified, reasonable notice 
of his intention to quit shall forfeit to his employer a specified amount, 
reasonable in it«.elf and duly proportioned to the wages received by 
the particular employe, will not be held void as a contract for a pen- 
alty, but treated as a valid and reason.ible stipulation for liquidated 
dnmages where the employe had service in a large manufacturing 
establishment that employed many hands, who were divided into sev- 



DECEMBER TERM, 1891. 155 

. .^ ,- e 

Tennessee Manufacturing Co. v. James. 

eral classes dependent upon each other, and where, in the parti.cular 
case, no data existed from which the actual damages inflicted could 
be ascertained. 

Case cited and distinguished : Schrimpf v. Tennessee Manufacturing 
Co., S6 Tenn., 219. 



FROM DAVIDSON. 



Appeal in error from Circuit Court of Davidson 
County. W. K.. McAlistkr, J. 

Dickinson & Frazer for Tennessee Manufactur- 
ing Co. 

E. J. WiCKWARE for James. 

LuRTON, J. Minnie James, a minor, was an 
employe of the appellant, a corporation engaged in 
.the manufacture of cotton goods. The contract of 
employment was in writing, and was with the 
minor and , her father. By one of the provisions 
of this contract it was stipulated that the employe 
should give two weeks' notice of her intention to 
quit. It is further provided that in case she 
should leave without giving two weeks notice, "or 
fail or refuse to faithfully work during a period 
of two weeks after giving notice of an intention 
to leave, * * * then it is hereby agreed 
that the amount stated below for the class to 



156 NASHVILLE : 



Tennessee Manufacturing Co. v. James. 



which I may belong is agreed upon as liquidated 
damages due said Tennessee Manufacturing Company 
at the time of my failure to comply with the terms 
of this contract, to compensate it for all damages, 
both actual and exemplary, and all loss arising 
from my failure to carry out the terms of this 
agreement; and it is further agreed upon that said 
amount, applicable to the class of employes to 
which I may belong, shall be deducted from any 
sum which may be due me by said company, 
whether on account of services rendered or other- 



wise." 



The class to which appellee belonged was that 
of those receiving fifty cents per day and under 
one dollar. The damages stipulated for this class 
was ten dollars. At the foot of this agreement, 
which was signed by appellee, was tliis further 
agreement signed by her father: 

*'The foregoing agreement has been read by tiie, 
and, fully understanding the same, it is also agreed 
to by me as binding both me and my daughter,. 
Minnie James, who is legally disqualified from 
making this contract, to all its terms and con- 
ditions. I agree further, that said Minnie James 
is hereby authorized to receive the wages of sjiid 
work, and that all sums paid to said employe are 
to be accepted as fully discharging all liability, to 
the full amount so paid, and said wages are to 
be subject to all the conditions of this contract as 
though said employe was legally empowered to act 
in person." 



DECEMBER TERM, 1891. 157 



Tennessee Manufacturing Co. v. James. 



Appellee gave notice of her intention to leave, 
and thereafter worked ten days, but at the end of 
that time quit without any excuse. At the time 
she quit there w^as due her twenty days wages, 
including the ten days after her notice. 

If the stipulation as to damages is invalid, then 
the company is due her ten dollars; if valid, then 
nothing is due her. Upon quitting she brought 
suit, by her father as next friend, upon a quantum 
meruit. The contract has been set up as a defense 
to her suit. 

The Circuit Judge being of opinion that the 
contract was invalid, as being one with a minor 
who had a legal right to repudiate same, gave 
judgment for the plaintiff. In this we think his 
Honor erred. If the contract had been alone with 
the minor, sJie might undoubtedly repudiate It. and 
recover upon a quantum meruit. The law would 
give the infant the privilege of judging whether 
such a contract was beneficial or not, and of 
avoiding it if she elected to do so, and recovering 
the value of her services as if she worked without 
any contract. Am. & Eng. Ency., Vol. X., title 
Infant. 

But this contract was in law with the fatheii 
who agreed that the wages, in law due to him, 
might be paid over to his child, ^^ subject to all the 
conditions of this contract.^' The wages of a minor, 
peculiar circumstances out of the way, are due to 
the father. This springs from his legal duty to 
support and educate his child. He may permit 



158 NASHVILLE : 



Tennessee Manufacturing Co. v. James. 



the minor to take and use his own earnings. 
This is called emancipation, and . emancipation will 
be a defense to the father's suit for the minor's 
wages. It may be express or implied, entire or 
partial. It may be conditional. It may be in 
writing or oral ; for the whole minority, or for a 
shorter term; as to a part of the child's wages or 
as to the whole. Emancipation will not enlarge 
the minor's capacity to contract; it simply precludes 
the father from asserting his claim to the wages 
of his child. Bishop on Contracts, Sec. 898. 

If one employ a minor with notice of the non- 
emancipation of the infant, it will be no defense 
to the father's suit for the wages that the child 
has received them. On the other hand, payment 
to the father will be no defense to the minor's 
suit if the employer knew of the fact of emanci- 
pation. These principles of the common law are 
well settled, and have not been aftected by statute. 
Cloud V. Hamilton^ 11 Hum., 105. 

The cases in America are collected in a note 
to Wilson V. McMilleriy 35 Am. Rep., 117. In 

view of these principles, we must construe the 

* 

contract of the father as an emancipation subject 
to the conditions as to damages in case his child 
shall quit without cause and without the stipulated 
notice. It is as much as if he had said: "My 
child is a minor. As such I am entitled to her 
wages. I am willing that she shall work in your 
mill, and that the wages she may earn shall be 
paid to her. I agree that she shall comply with 



DECEMBER TERM, 1891. 159 

Tennessee Manufacturing Co. v, James. 

this contract, and if she does riot, then the wages 
legally due me shall be detained by you to the 
extent provided in the contract I make for her; 
and only such wages paid to her as I would be 
entitled to receive if the contract were exclusively 
with me." This was a conditional emancipation 
under a special contract made by and with the 
father for himself and his child. Her emancipation 
was partial. The father, having a legal right to 
her entire wages, has stipulated that none shall be 
paid her beyond the sum due under this agreement 
with him. If this contract is binding on him, the 
minor cannot recover beyond its limits. If the 
contract is invalid as to him, as stipulating for a 
penalty, then it will not be in the way of pliiint- 
ift''s suit. 

We agree with the Circuit Judge in holding 
that this contract does not fall within the case of 
Schrimpf v. Tennessee Manufacturing Co., 86 Tenn., 
219. That case concerned a contract construed as 
stipulating for a penalty in case of a breach. It 
was held not . to be an agreement for liquidated 
damages, because the forfeiture covered all the 
wages due at time of breach, regardless of amount 
due, and regardless as to whether the arrearages 
were the consequence of the default of the com- 
pany. It was a contract harsh and unconscionable. 
It preserved no proportion between sum forfeited 
and the actual damages, and put all employes upon 
same footing, whether much or little was earned, 
much or little due when breach occurred. The 



I 



160 NASHVILLE : 



Tennessee Manufacturing Co. v, James. 



damages were to be all that was due in any case. 
To one this might have been the wages of months, 
to another the earnings of but a day. But in 
that case Chief Justice Turney quoted and indorsed 
the language of Campbell, Judge, in Richardson v. 
Wochler, 26 Mich., 90, where lie said r " We have 
no difficulty in holding that the injury caused by 
the sudden breaking oft' of a contract of service 
by either party involves such difficulties concern- 
ing the actual loss as to render a reasonable agree- 
ment for stipulated damages appropriate. If a fixed 
sum, or a maximum within which wages unpaid 
and accruing since the last pay-day might be for- 
feited, should be agreed on, and shall not be un- 
reasonable or an oppressive exaction, there would 
seem to be no legal objection to the stipulation 
if both parties are equally and justly protected.'' 

Applying these principles to th*" case 'for judg- 
ment we have no difficulty in holding that the 
stipulation here is for liquidated damages and not 
for a penalty, and that the contract is neither un- 
reasonable nor oppressive. "The tendency and 
preference of the law is to regard stated sums as 
a penalty, because actual damages can then be re- 
covered, and the recovery limited to such damages. 
This tendency and preference, however, does not 
exist where the actual damages cannot be ascer- 
tained by any standard. A stipulation to- liquidate 
damages in such cases is considered favorably." 
1 Sutherland on Damages, 490. 

This contract of employment on its face affords 



I>ECEMBER TERM, 1891. 161 

Tennessee Manufacturing Co. v. James. 

no data by which the actual damages likely to 
result from its non-observance can with any cer- 
tainty be ascertained. Such a circumstance has 
been regarded as justifying the Courts in holding 
the sum stipulated as liquidated damages. 

The plaintiflT in error was a cotton mill, having 
in its employment hundreds of hands. The work 
is divided into many departments. The raw ma- 
terial is handled by one set of hands and piit in 
condition for another, and the second department 
still further advances its manufacture; and so on 
through successive stages of progress. The evi- 
dence shows that each department is dependent 
upon that immediately below it. Now, if the 
operatives of one department quit, or their work is 
delayed, its eflfeet is felt in all to a greater or less 
degree. It is also shown that it is not always 
easy to replace an operative at once, and that the 
unexpected quitting of even one hand will to some 
extent affect the results throughout the mill. Yet 
the evidence shows that it would be impossible to 
calculate with any certainty the precise, actual loss 
due -to an unexpected breach of an employe's en- 
gagement; though it is shown that there are some 
departments of work where the quitting of a small 
number of hands, without notice, would stop the 
entire mill and throw other hundreds out of em- 
ployment. In this day of great factories, and the 
consequent division of labor into separate depart- 
ments, a degree of interdependence among employes 
exists which they ought and do recognize, and 

11— 7 p 



162 XASIIVILLE : 



Tennessee Manufacturing Co. 7'. James. 



which makes the obligation of each to the whole 
and to the common employer all the more im- 
portant. The case is one, then, where the certainty 
of some damage, and the uncertainty of means 
and standards by which the actual damage can be 
ascertained, requires the Courts to uphold the con- 
tract as one for liquidated damages and not as 
providing for a penalty. The sum fixed is certaiu. 
^It is proportioned to the earning capacity of the 
employe, and hence presumably with regard to the 
particular results of a breach in each department. 

There is no hardship in the agreement requiring 
two weeks' notice. If the operative leaves for 
good cause, the contract would not apply. If able 
to work, the pay continues until notice has been 
worked out.' That she returned the next day 
after quitting, and oiFered to work out her notice, 
is no compliance. The mischief had been done. 
She had voluntarily, and without pretense of excuse 
or asking to be released, gone off, and left her 
work standing, and endeavored to get others to go 
with her. The damages had accrued, and, under 
the facts of this case, appellant was not bound to 
restore her. 

Reverse. Judgment liere for plaintifi* in error. 



DECEMBER TERM, 1891. 163 



Glasgow 7'. Turner. 



Glasgow r. Turner. i?i IS 



{Nashville. January 26, 1892.) 

1. Fraudulent Conveyance. Farming contract bctiveen father and son 

held valid. 

A father, being very old and infirm, and having a large dependent 
family, but no property except a small farm and some live-st*)ck, 
made a verbal contract with his son, a young man living in his family, 
that the latter should cultivate the farm for a year and out of the 
crop support the entire family and feed the live-stock and take the 
residue for his compensation. The father and a younger son gave 
some assistance in the cultivation of the crop, which yielded about 
one hundred barrels of corn, worth $200. There was no intentional 
fraud. *The father's creditors sought to subject the corn crop to pay- 
ment of their debts. 

Held — The corn crop belonged to the son, charged with the support of 
the father's family, and that the father's creditors could not assert 
any claim to it. 

Case cited and approved : Leslie v. Joyner, 2 Head, 515. 

2. Supreme Court. Renders final jiid^^moil upon reversal of law cause^ 

when. 

Upon reversal of a law cause tried by the Circuit Judge without inter- 
vention of a jury, on the sole ground that there is no evidence 10 
support the Judge's finding upon the facts, this Court will render 
final judgment in favor of the plaintiff in error. 

Cases cited and approved: Smith v. Hubbard, 85 Tenn., 306; Single- 
ton V. Wilson, 85 Tenn., 347; Settle v. Marlow, 12 Lea, 474. 



FROM STEWART. 



Appeal in error from Circuit Court of Stewart 
County. A. 11. Munford, J. 



no 128 



16-4 IfASHVILLE 



Glasgow V. Turner. 



J. W. Rrcfi for Glasgow. 

J. W. Stout and S. C. Lewis for Turner. 

Caldwell, J. This is an action of replevin, 
involving the right to the possession of fifty bar- 
rels of corn. The Circuit Judge, trying the case 
without a jury, rendered judgment in favor of the 
defendant, and plaintiff appealed in error. 

John Glasgow owned a small farm, some horses, 
cattle, and hogs in Stewart County. Being old, 
and having a large family dependent upon him, 
he placed the farm and live stock in charge of 
his son, C. A. Glasgow, in the spring of 1890, 
under a verbal agreement, whereby the eon bound 
himself to cultivate the farm and support- his 
father's family and feed the stock out of the crop 
raised, taking the residue as compensation for his 
labor. 

The son was a young man, living in his father's 
family upon the farm. 

In pursuance of the contract, the son, by his 
own labor and that of a hired hand, with some 
little voluntary assistance from his father and 
younger brother, cultivated a crop of corn, which 
yielded about one hundred barrels, worth two 
hundred dollars. 

Such is the substance of the material facts, as 
detailed by the plaintift", who was the only wit- 
ness in the case. 

A part of the corn is the subject-matter of 



DECEMBER TERM, 1891. 105 



Glasgow V. Turner. 



this litigation. Having been seized under execu- 
tion against the father, the son brought this action, 
claiming the corn as his own. 

The trial Judge was of opinion that the con- 
tract was fraudulent in fact and in law, and, as 
a consequence, adjudged the corn to be the prop- 
erty of the father, and subject to his debts. 

In that view w^e cannot concur upon either 
ground. There is no evidence, not even an inti- 
mation or indication, direct or remote, of an inten- 
tion to hinder, dehay, or defraud creditors. Hence, 
the contract cannot properly be held to have been 
fraudulent in fact. 

It is true, as contended by counsel of appellee, 
that the finding of the trial Judge upon the facts 
of the case is entitled to the same weight as the 
verdict of a jury; but neither is binding upon 
this Court, unless there be some material evidence 
to support it. Eller v. Richardson^ 5 Pickle, 576. 

As we have already seen, there is no evidence 
of a fraudulent intent in this case. Therefore, 
the finding of fraud in fact is without support, 
and cannot control the decision here to be made. 

The other ground of the trial Judge's action 
involves a question of law; and upon that, as 
upon the facts, we cannot assent to his conclusion. 
The contract did not contravene any rule of law 
or public policy. Consequently, it could not have 
been fraudulent in law. 

In our judgment, a more natural, fair, and hon- 
est arrangement could not have been made by par- 



166 NASHVILLE: 



Glasgow V. Turner. 



ties situated as these were. John Glasgow was 
under obligation, both legal and moral, to provide 
a support for his family ; yet he was unable to 
do so by his own labor. It was allowable for 
him to make ^ any bona fide use or disposition of 
his property for that purpose. He might lawfully 
have sold a sufficiency of his property and lived 
upon its proceeds; but instead of that he let the 
temporary use of his farm and stock to his son, 
and thereb}^ gained a support for himself and fam- 
ily without any appreciable diminution of his es- 
tate. In that way he preserved the corpus of his 
estate, which otherwise must have been encroached 
upon ; and by an honest arrangement actually ben- 
efited instead of injuring the creditor. 

It is apparent from the crop produced that the 
plaintift' was shown no great favor by the con- 
tract. Indeed, it is to be doubted that one occu- 
pying a ditterent relation would have entered into 
an arrangement with so little promise of compen- 
sation for the labor to be performed. 

Left in idleness, the farm could have vielded 
nothing. The old gentleman was not able to cul- 
tivate it himself, and thereby save the small sur- 
plus of the crop for his estate. Had he been 
able but unwilling, that would have furnished no 
ground for legal complaint, for a debtor cannot, 
under our law, be coerced to work for the ben- 
efit of his creditor. 

Again, no property of the debtor was incum-. 
bered, covered up, or placed beyond the reach of 



DECEMBER TERM, 1891. 167 

Glasgow V. Turner. 

— - — 

the creditor by this contract. No title to any 
thing except the crop to be raised was attempted 
to be passed to the plaintiff*. Such of ihe land . 
and live stock, if any, as may have been subject 
to the claim of creditors when the contract was 
made remained in the same .attitude after it was 
made. 

Good morals, law, and public policy alike com- 
mend such contracts under such* circumstances. 

A farming contract between father and son, very 
much like the one before us, was upheld and en- 
forced by this Court in the case of Leslie v. Joyiier, 
2 Head, 515. 

All the corn belonged to the plaintiff, charged 
with the support of the family of his father. It 
was in no sense subject to levy for the father's 
debt. 

The case having been tried by the Circuit Judge 
without the intervention of a jury, this Court, 
upon reversal, directs such judgment as he should 
have rendered. Smith v. Hubbard, 1 Pickle, 306; 
Singleton v. Wilson, lb,, 347 ; Settle v. Marlow, 12 
Lea, 474. 

Reverse and enter judgment for plaintiff. 



168 NASHVILLE: 



\m 129 



Montague f. Thomason. 



Montague v. Thomason. 
{Nashville. January 28, 1892.) 

1. Witness. Transactions with^ and statenunts by^ deceased person that a 

parfy may not testify to. 

In suit upon note by the administrators of the payee against the makers 
thereof, it is not competent to prove by one of the defendants that 
he had satisfied the note sued on, by sending by mail, or otherwise 
delivering to the payee, a renewal note and some cash, pursuant to 
instructions and authority contained in a letter of the payee, which 
had been received by the defendants, and unintentionally lost or 
mislaid. 

Code construed: ^§4563. 456$ (^J• & V.); Wz^i^c, 3813^ (T. & S.). 

Cases cited and approved: Key "■. Holloway, 7 Bax., 579; Hill v, Mc- 
lean, 10 Lea, 115; Jones v. Waddell, 12 Heis., 338. 

2. Same. Alay prove existence and loss of letter. 

But a defendant may, in such case, state that he had a letter from 
plaintiff's intestate, and that it is lost; but he cannot testify to its 
contents. 

Case cited and approved: Mason v. Spurlock, 4 Bax., 563. 

3. Same. Competency of agent of living party. 

And in such Case the agent of the defendants, if not himself sued, 
may testify on behalf of his principals to any transactions he may 
have conducted for them with plaintiff's intestate, and to any state* 
ments the deceased made in his presence. 

Cases cited and approved : McBrien v, Martin, 87 Tenn., 13 ; Fuqua v, 
Dinwiddie, 6 Lea, 645 ; Reiley z/. English, 9* Lea, 19 ; Kelton z'. 
Jacobs, 5 Bax., 574; Hudgins z^. Fanning, 4 Bax., 578. 

Cit-jd and distinguished: Cottrell «/. Woodson, 11 Heis., 681. 

4. Supreme Court. Affirms judgment in laiv cause based in part upon 

incompetent er^idence^ when. 

This Court will affirm judgment in a law cause determined by the lower 
Court without the intervention of a jury, although incompetent evi- 



DECEMBER TERM, 1891. 169 

Montague v. Thomason. 

dence was admitted over objection and considered on the trial, if it 
appears, upon a survey of the entire record, that the judgment is 
correct upon the competent evidence, after excluding from consider- 
ation all the incompetent evidence. 

Cases cited and approv»ed: Wheeler v. Slate, 9 Heis., 393; Fogg v, 
Gibbs, 8 Bax., 469; Smith v. Hubbard, 85 Tenn., 306. 



FROM WAYNE. 



Appeal in error from Circuit Court of Wayne 
County. E. D. Pattekson, J. 

Jno. p. Montague and Pitts & Meeks for 
Montague. 

R. A. Haggard for Thomason. 

Caldwell, J. This is an action on a promis- 
sory note. The Circuit Judge tried the case 
without a jury, and rendered judgment for de- 
fendants. Plaintiffs appealed in error. 
The note sued on is as follows: 
"$158.00. On or before the twenty-fifth day .of 
December next we, or either of us, promise to 
pay to the order of A. T. Hossell one hundred 
and fifty-eight dollars, for value received. 
."This January 24, 1889. 

" S. J. Thomason, 
"R. T. Chappell, 
"F. M. Thomason, 
"W. L. Bell, Sen.'' 



170 NASHVILLE : 



Montague v. Thomason. 



A. T. Ilossell, the payee, died testate, and his 
executors, Montague and Buchanan, finding the 
note araong the valuable papers of their testator, 
brought this suit against the makers to enforce 
collection. 

Defendants admit the execution of the note, but 
insist that it was paid to the testator by the ex- 
ecution of another note in renewal thereof. The 
alleged renewal note is in these words and figures: 
"§158.00. Waynesboro, Tenn., Dec. 25, 1889. 

"Twelve months after date we promise to pay 
to the order of A. T. Ilossell one hundred and 
fifty-eight dollars, value received. 

"S. J. Thomason, 
"F. M. Thomason, 
"li. T. Chappell, 
"W. L. Bell." 

This note also came to the hands of the plaint- 
iffs as an asset of their testator, and was by them 
collected from the defendants before the commence- 
ment of this suit. 

The evidence introduced by defendants, if com- 
petent, clearly established their contention, and 
justified the judgment of the trial Judge. Plaint- 
iffs insist, however, that all the evidence tending 
to* show payment by renewal was incompetent, and 
that its admission over their objection was im- 
proper and erroneous. 

Defendant F. M. Thomason went on the stand 
in his own behalf and testified, over objection, that 
he received a letter (which he had lost) from A. 



DECEMBER TERM, 1891. 171 



Montague v. Thomason. 



T. Hossell, authorizing a renewal of the note sued 
on by prepayment of interest and execution of 
another note for same amount and signed by same 
persons, and promising to send him, as satisfied, 
the note sued on, when the renewal note should 
be delivered ; that he (Thomason), in pursuance 
of that letter, caused the second note above set 
out to be executed in payment and renewal of 
the note sued on, and sent it, with the interest, 
to Hossell by mail; that for some reason unknown 
to him, Hossell failed to send him the renewed 
and satisfied note as promised in the letter. 

Though Thomason was not disqualified to speak 
as a witness by^ the mere fact of being a party 
to the suit (Code (M. & V.), §4503; Key v. HoU 
loway, 7 Bax., 579; Bill v. lIcLean, 10 Lea, 115; 
Jones v. Waddell^ 12 Ileis.j 338), he was incompe- 
tent to. testify ''as to any transaction with or 
statement by" Hossell, testator of plaintiffs. The 
language of the statute is as follows:, 

"In actions or proceedings by or against ex- 
ecutors, administrators, or guardians, * in which 
judgments may be rendered for or , against them, 
neither party shall be allowed to testify against 
the other as to any transaction with or statement 
by the testator, intestate, &r ward, unless called to 
testify thereto by the opposite party." Code, 
§ 4565. 

Obviously the disqualification extends to and 
embraces every transaction with or statement by the 
deceased, whatever be its nature, and whether oral 



172 NASHVILLE : 



Montague v, Thomason'. 



or in writing, the prime object being to put 
litigant parties upon equal footing in the Courts, 
and prevent the living from testifying against the 
dead. The testimony of Thomason includes both 
a transaction with and a statement by the deceased, 
and, consequently, is doubly incompetent — within 
the prohibition of the statute in a two-fold sense. 
lie testifies to the extinguishment of the note 
sued on by the execution and delivery of another 
note in its stead. If that was not a transaction, 
it would indeed be impossible to state what would 
constitute a transaction between the maker and 
payee of a note. Having been participated in by 
both of them, as parties in intertst, it was mani- 
festly a transaction by the witness with the de- 
ceased, and nice versa. As an important link in 
the transaction, Thomason details the proposition 
made by Hossell, the contents of his letter, which 
of necessity was a statement by the deceased, if 
written or authorized by him. 

That the exchange or novation of notes was 
accomplished by means of written correspondence 
between the parties signifies nothing in determin- 
ing the competency or incompetency of Thomason'^s 
testimony. A written transaction with or state- 
ment by a deceased peAon is no more a matter 
about which the adverse party may testify than a 
verbal transaction or statement. The statute makes 
no distinction. Its prohibition, on the contrary, 
is general, not limited to transactions and state- 
ments of one kind or the other, but comprehend- 



DECEMBER TERM, 1891. 173 



Montague v. Thomason. 



ing both. No transaction with or statement by a 
deceased person is excepted/ but all such are in- 
cluded; hence, the only way to reach a construc- 
tion different from that herein announced would 
be through the unwarranted assumption that the 
words statement and transaction^ in their proper 
use, relate alone to things said and done verbally. 
Webster defines a transaction as "the doing or 
performing of any business ; the management of 
an affair." Effecting the novation of notes, whether 
by word of 'mouth or through written correspond- 
ence, is, unquestionably, the doing or performing 
of a matter of business, the management of an 
affair; therefore, it is a transaction, whether ac- 
complished by tlie one mode or the other. 

The same author defines statement thus : " The 
act of stating, reciting, or presenting, verbally or 
on paper." 

To limit the disqualification to verbal ^ transac- 
tions and statements would do the greatest violence 
t(x both the letter and spirit of the statute, and 
place the estates of dead persons, which it was 
designed to protect, at the mercy of corrupt parties. 
Even doubtful language would be so construed as 
to avoid such a result. 

Preliminary to the introduction of other proof, 
it was competent for Thomason to state, as inde- 
pendent facts, that he at a particular time pos- 
sessed a written instrument or letter, and that it 
had been unintentionally lost (see intimation to 
this effect in Mason v. Spurlock, 4 Bax., 563) ; 



174 NASHVILLE : 



Montague r. Thomason. 



but if claimed to liave been written by Hossell, 
deceased, he was not competent to testify as to 
its contents, or to prove by his own oath what 
he did in response tliereto. 

R. T. Chappell, another defendant, testified, in 
general terms, that the note in suit was paid in 
the life-time of Hossell bv the execution of the 
second note, herein described, in renewal thereof. 
This evidence should have been rejected. The no- 
vation stated by the witness was so clearly a 
transaction with the deceased, and the testimony 
80 plainly within the prohibition of the statute, as 
not to admit of discussion or elaboration. 

Will Thomason, a son of Defendant F. M. 
Thomason, was aLso introduced by** the defendants. 
He testified that he went to see Mr. Hossell, at 
the instance of defendants, and inquired if he was 
willing for them to renew the note sued on; that 
Mr. Hossell said he was willing to the desired 
renewal, and would wait on the defendants one 
year longer for the final payment of the debt jf 
they would prepay the interest and put the same 
parties on the new note; that he told witness, {it 
the same time, that he would send the new note 
to F. M. Thomason by mail, to be properly signed 
and returned, after which he (Mr. Hossell) would 
surrender the old note. 

Though objected to, this evidence was properly 
received, being both competent and relevant. The 
contention that it was incompetent because the in- 
terview occurred while the witness was acting as 



DECEMBER TERM, 1891. 175 



Montague v. Thomason. 



agent of the defendants is unsound. Tlie statute 
applies alone to parties to the litigation. Even 
persons directly interested in the result of the 
suit (as this witness was not), are not precluded 
from testifying, if not parties, McBrien v. Martin^ 
3 Pickle, 13; Fuqua v. Dimciddie^ 6 Lea, 645; 
Rielly v. Evglish^ 9 Lea, 19 ; Kelton v. Jacobs, 5 
Bax., 574; Hadgins v. Fanning, 4 Bax., 578. 

The assumption that the agent is disqualified 
whenever his principal, if representing himself, 
would have been . within the prohibition of the 
statute, is not justified by the case of Cottrell v. 
Woodson, 11 Heis., 681. It is true that the Court 
held in that case that a contract with the son, 
as agent of his father, was a transaction with the 
father, and, .therefore, that the other party to the 
contract could not give testimony with respect to 
it in a suit between himself and the personal rep- 
resentative of the father; but the rejected witness 
was a party to the .litigation. Had he not been 
so, he could not properly have been denied the 
privilege of testifying. Two things must concur 
to bring a case within the operation of the stat- 
ute, and authorize the rejection of the evidence: 
(1) The proposed witness must be a party to the 
suit in such way that judgment may be rendered 
for or against him; and (2) the subject-matter of 
his testimony must be some "transaction with or 
statement by the testator, intestate, or ward." 

The witness. Will Thomason, testified further 
that he saw, in his father's possession, a letter 



176 NASHVILLE : 



Montague ?'. Thomason. 



from Mr. Hossell, which stated, ia substance, the 
same thing he (Mr. Hossell) had previously told 
witness about the proposed exchange of notes. 

Objection to this evidence was properly over- 
ruled — first, because it was allowable to prove the 
contents of the letter by one not a party to the 
litigation, after its loss had been shown; and, sec- 
ondly, because the objection was general. 

The note produced by defendants, and shown to 
have been paid by them to the plaintiffs, as ex- 
ecutors of Hossell, is precisely such a note as this 
witness says Hossell requested in renewal of the 
note sued on in this case, being for the same 
amount, signed by the same persons, due in twelve 
months, and dated as of the day the other note 
matured. 

There is some other circumstantial evidence on 
both sides of the issue, but nothing else so po- 
tent as facts and circumstances already mentioned. 

Considering only the competent evidence found 
in the record, and disregarding that which is in- 
competent, as is the practice of this Court when 
the case has been tried below without a jury 
{Wheeler v. State, 9 Heis., 393; Fogg v. Gibbs, 8 
Bax., 469; Smith v. Hubbard, 1 Pickle, 306), we 
reach the same conclusion the honorable trial 
Judge did, and affirm his judgment, with costs. 



DECEMBER TERM, 1891. 177 



Railroad v. Dies. 



Railroad v. Dies. 
{Nashville. January 30, 1892.) 

1. Common Carrier. Void stipulation against liability fornegligence, 

A common carrier is not protected against liability for loss cf goods 
resulting from defects in car, the existence of which affords evidence 
of negligence, by a stipulation in the bill of lading accepted by the 
shipper to the effect that he had examined the car for himself, and 
found it in good order, and accepted it as '* suitable and sufficient" 
for the purpose of his shipment. 

2. Same. Liability for defects in cars used, though belonging to another, 

A common carrier is liable for loss of goods resulting from defects in 
car used for transportation, the existence of which imply negligence, 
although the car belonged to another, and was procured by the car- 
rier for the particular shipment at the special request of the shipper, 
upon his paying the additional expense, and the shipment was made 
in its then condition — the car being of a kind acceptable to the 
carrier, and commonly used in making like shipments. 

Case cited: 102 U. S., 452. 



FROM DAVIDSON. 



Appeal in error from the Circuit Court of 
Davidson County. W. K. McAlistbr, J. 

Baxter Smith for Railroad. 

Stokes & Stokes for Dies. 
12—7 p 



178 NASHVILLE : 



Kail road v. Dies. 



LuRTON, J. Mr. Dies shipped from Nashville a 
car-load of live stock, destined to San Antonio, 
Texas. The shipment was upon special terms, con- 
tained in a printed live-stock contract. One of 
the stipulations in this contract was in these words: 

"And it is further understood and agreed that 
said party of the second pWt has examined and 
found in good order the car or cars provided by 

4 

the said party of the first part for the transpor- 
tation of said animals, and hereby accepts the 
same, and agrees that they are, as thus provided, 
suitable and sufficient for said purpose." 

There was evidence tending to show that a 
stallion shipped under this contract sustained inju- 
ries, due to a defect in the car, from which it 
died. There >yas a jury and verdict for plaintiff. 

The Court was asked to charge in reference to 
the provisions above quoted, "that the live-stock 
contract that was read in evidence having been 
signed and held by plaintiff, and he having acted 
under it, and that by one of the terms of it the 
plaintiff acknowledges that the car in which the 
stock was shipped was safe and sufficient, he is 
now estopped from alleging that it was unsafe and 
unsuitable." 

This was refused. This was not error. Rail- 
way companies are common carriers of live stock, 
and incur the same liability as carriers of other 
property, subject only to the limitation that they 
are excused if the loss is attributable to the in- 
trinsic qualities or nature of the animal. But it 



DECEMBER TERM, 1891. 179 

Railroad v. Dies. 

is equally as well settled that they may limit this 
common law liability as insurers by a special con- 
tract, on sufficient consideration, provided such ex- 
emption shall not operate to exempt them from 
the consequences of their own negligence. The 
duty of a common carrier of freight is to furnish 
cars suitable and safe. Any failure in this regard 
which could have been avoided by due care is 
negligence. 

If this agreement to accept this car as safe 
and suitable is to be construed as estopping the 
shipper from relying upon the fact that it was 
not safe or in repair, then the effect of the con- 
tract would be to release the carrier from the con- 
sequence of its own negligence in furnishing an 
unsafe vehicle. 

If a shipper can conclude himself by his agree- 
ment as to the car in which . his freight was 
shipped, he could, for the same reasons, agree as 
to the suitableness and safety of the roadway, en- 
gines, etc. Such a contract would be invalid, as 
operating to cast upon the shipper the duty of 
inspecting and determining the safety and suffi- 
ciency of the means the carrier has provided for 
the discharge of his public duties. Its necessary 
effect would be to release it from liability for its 
own negligence in failing to provide safe and suit- 
able vehicles. The effect of this agreement, as 
eoldence of the condition of the car, the defect 
relied on being quite an obvious one, if it existed 
at all, was fully covered by the charge as deliv- 



180 NASHVILLE : 



Railroad v. Dies. 



ered; and the charge io this respect is not ob- 
jected to. 

The Court was further requested to charge : 

"That if the proof shows that the plaintiff was 
unwilling to accept an ordinary freight-car, such 
as the defendant could furnish, to ship his stock 
in, and that he had Mr. Champe to procure a 
palace horse-car for that purpose from a different 
company, he (plaintiff) paying that company for 
the use of its car, that then, and in that case, it 
was the duty of the plaintiff, or of the company 
from which he obtained the car, to inspect it and 
see that it was safe and sufficient for the purpose 
of shipping his stock in, and it was no part of 
defendant's duty to do so." 

This was refused. The evidence shows that Mr. 
Dies did procure the agent of the railway com- 
pany to get for his use a car known as an Arms' 
Palace Horse-car. This car was owned by an in- 
dependent company, who were paid for its use by 
Mr. Dies. It was brought to Nashville, and here 
loaded with this stock, and then put in the train 
of the Louisville and Nashville Company, who had 
contracted for the carriage of this stock. The 
place of such cars in modern transportation is 
well described by Mr. Champe, the agent of the 
railway company, through whom Mr. Dies con- 
tracted for its use. He says : 

"It is quite an advantage to defendant to use 
the said palace cars, and a great deal of stock is 
shipped that way; the defendant railway company 



DECEMBER TERM, 1891. 181 

Railroad v. Dies. 

procuring for the shipper such cars. These palace 
stock-cars occupy to the shipment of stock the 
same place that palace sleeping-cars do to passen- 
gers traveling over our road." 

The carrier cannot escape responsibility by carry- 
ing its freight in cars furnished by or owned by 
another company. It was a common carrier with 
respect to this shipment, and it was a matter of 
no importance who owned ' or furnished or paid 
for the particular car into which this stock, had 
been loaded. This has been thoroughly well settled 
with respect to its liability to passengers. 

In the case of Railway Company v. Ray the 
passenger was injured by reason of a defect in a 
Pullman palace car in which he was riding. Al- 
though the car belonged to the Pullman Company, 
and was in the immediate control of its own agents 
and employes, yet the Supreme Court of the United 
States was unanimously of opinion that this car, 
being a part of the train under the control of the 
railway company, made the latter liable for any 
defect in the car whereby one of its passengers 
was injured. 102 U. S., 452. 

So in the case of Railroad v. Katzenberger, 16 
Lea, the railway company was held liable for the 
loss by a passenger of his hand baggage, while 
riding in a sleeping-car under the special care of 
the servants of an independent sleeping-car com- 
pany. That the car made a part of the train of 
the railway company fixed its responsibility as a 
carrier. The rule applicable to the carriage of 



182 NASHVILLE : 



Railroad v. Dies. 



passengers in the cars of au independent company 
applies with full force to the carriage of stock in 
special cars owned by an independent company. 

There was no error in refusing to charge as 
requested. The other errors assigned have been 
examined, none of them are well taken. 

Judgment affirmed. 



DECEMBER TERM, 1891. 183 



Simmons v, Leonard. 



Simmons v. Lbonard. |,iJ jg 

(Nashville. February 2, 1892.) 

1. Will. ProbcUe of. Sufficient attestation by subscribing witness. 

Although subscribing witness to will of realty did not attest it in the 
presence of the other witness, nor see the testator sign it, yet his 
attestation is sufficient if he signed at the request and in the presence 
of the testator, and after the latter's name had been attached. 

Cases cited: Logue v, Stanton, 5 Sneed, 98; Rosez^. Allen, i Cold., 24; 
Bartee v, Thompson, 8 Bax., 5x2; Beadles v, Alexander, 9 Bax., 606. 

2. Same. Same, Insufficient attestation by subscribing witness. 

Although a will of realty is regular in form, having the testator's name 
attached and attested by two subscribing witnesses, yet it is invalid, 
if it is disclosed that the name of one of the subscribing witnesses 
was signed, at his request and in his presence, by a devisee under the 
will, and without the witness making his mark ; and that the witness, 
who was partially blind, had no means of identifying the will as the 
paper to which his name had been attached; and that it is doubtful 
whether the testator had previously attached his name — the witness 
having attested the paper at the instance of the devisee, and out of 
the presence of the testator, the latter having previously requested 
witness to attest a paper of that character for him. * 

Code construed: ??3003, 48 (M. & V.); §§2162, 50 (T. & S.). 

Cases cited: Ford v. Ford, 7 Hum., 96; Rose v, Allen, i Cold., 23; 
Jones V. Arterburn, il Hum., 98; Alexanders. Beadle, 7 Cold., 128; 
Maxwell v. Hill, 89 Tenn., 588; Guthrie v. Owen, 2 Hum., 202; 
Davis V, Davis, 6 Lea, 543. 



FROM MARSHALL. 



Appeal in error froni Circuit Court of Marshall 
County. Robert Cantrell, J. 



184 NASHVILLE 



Simmons v, Leonard. 



W. W. Walker, P. C. Smithson, and W. N. 
CowDEN for Simmons. 

Jones, & Murray, J. H. Lewis, Z. W. Ewing, 
W. Leonard, and L. A. Thompson for Leonard. 

Caldwell, J. This is a contested will case. 
In February, 1877, Miss Margaret Simmons, who 
was both old and illiterate, died at her residence in 
Marshall County, leaving a valuable tract of land 
and some personalty. In March following a cer- 
• tain paper writing, alleged to be her last will and, 
testament, and making disposition of her entire 
estate, was admitted to probate, in common form, 
in the County Court of that county. Dr. John 
M. Leonard, the principal devisee, was qualified as 
executor at the same time. 

In July, 1887, D. P. Simmons, a brother of 
the deceased, and other relatives filed a bill in 
the Chancery Court, alleging that the said instru- 
ment was not her last will and testament, and 
seeking an account with the executor. 

In pursuance of the direction of the Chancel- 
lor in interlocutory order, complainants sought to 
make up and try an issue of devisavit vel non in 
the ' Circuit Court; but the Circuit Judge refused 
to take jurisdiction because of the pendency of 
the suit in the Chancery Court. 

On appeal in error, this Court decided (5 Pickle, 
622) that the Circuit Court, alone had jurisdiction 
to try an issue of devisavit vel non^ and thereupon 
remanded the case. 



DECEMBER TERM, 1891. 185 

Simmons v, Leonard. 

The Honorable Circuit Judge thereafter tried 
the issue without a jury, and pronounced judgment 
in favor of the will. Contestants have appealed 
in error. 

Our first inquiry shall be whether or not Eleazar 
Cochran and W". F. McDaniel, whose names appear 
on the propounded instrument as those of subscrib- 
ing witnesses, make out a case of due and formal 
execution under the statute. How that is can be 
determined only by a careful consideration of what 
they say occurred at the time, the certificate to 
which their names are attached being in proper 
form and reciting all necessary facts. 

McDaniel testified that he was notified bv Dr. 
John M, Leonard that Margaret Simmons wanted 
him to witness her will; that he afterward went 
by Leonard's house, and they went together to 
her house; that she brought a paper out on the 
porch and told him she desired him to witness 
her will; whereupon, he then and there, in her 
presence and at her request, signed his name to 
tlie paper as a subscribing witness; that he, at 
that time, saw the names of Margaret Simmons, 
the testatrix, and Eleazar Cochran, the other sub- 
scribing witness, upon the paper; that no one was 
then present except the testatrix, Dr. Leonard, a 
small negro, and witness; and, finally, the paper 
in contest being produced, the witness said it was 
the same to which he subscribed his. name, at the 
time and under the circumstances already detailed. 

This witness shows himself to have been com- 



186 NASHVILLE : 



Simmons v, Leonard. 



petent, and by his testimony makes a case of due 
execution, so far as one subscribing witness can 
make it. 

It was not at all necessary that he should see 
the testatrix sign the paper, nor that he should 
subscribe it in the presence of the other witness. 
Logue v. Stanton^ 5 Sneed, 98; 1 Cold., 24; 8 
Bax., 512; 9 Bax., 606; 2 Greenleaf on Evidence, 
Sec. 676; 1 Jarman (R. k T.), 212, 213; Dewey 
V. Dewey y 1 Metcalf, 349; Jauncy v. Thorne^ 2 
Barb. Ch., 40; Burwell v. Corbin^ 10 Am. Dec, 
494; Ela v. Edwards, 16 Gray, 92; 13 Gray, 110; 
Ellis V. Smithy 1 Vesey, Jr., 16; 2 Am. Dec, 624; 
55 Am. R., 762; 4 Kent, *516; Bosser v. Frank- 
liny 6 Grattan, 1 (S. C, 52 Am. Dec, 97). 

Cochran, the other subacribing witness, died 
before the trial, and, therefore, could not be ex- 
amined in the presence of the Court; but his 
deposition, which had been taken in the Chancery 
cause, was used as evidence in this case. 

He deposed that he was a neighbor of Margaret 
Simmons, deceased; that Dr. John M. Leonard 
called on him twice and told him she wanted him 
to witness her will ; that a negro man, living on 
her place, was subsequently sent for him, and he 
then went to her house; that he found her alone, 
and when he first got there she told him she 
wanted h.im "to sign a will" for her, though she 
did not then, produce it, or say more about it; 
that Dr. Leonard afterward came and "got the 
will out of the bureau, or oft' the top of it," and 



DECEMBER TERM, 1891. 187 

Simmons v, Leonard. 

then at the request of witness signed the name 
of witness to it; that this request was made by 
witness because he was so nearly blind that he 
could not see well enough to sign his own name; 
that he, witness, did not have the will in his own 
hands, or see the testatrix have it in her hands 
at any time; that she did not sign it in his 
presence, and he did not know whether she signed 
it before he went to her house or after he left, 
if at all; that he did not have the will read or 
learn its contents. 

His name, without more, is attached to the cer- 
tificate. It is "Eleazar Cochran" simply, and not 

bin 

"Eleazar + Cochran," as is usual when a person 

mark 

unable to write has another sign his name for 
him. There is no mark or sign to indicate that 
Cochran did not sign his own name, though the 
fact is, as he states himself, that it was written 
by Dr. Leonard at his request. 

Clearly, Cochran was not a proper subscribing 
witness. He was competent in the sense of being 
disinterested, but the part he took in the execution 
of the alleged will did not give him the full 
character and functions essential to a subscribing 
witness. His evidence does not establish such a 
subscription as the law requires. 

To constitute a valid will of real estate the 
instrument 'must be subscribed by two i witnesses at 
least, neither of whom is interested in the devise. 
Code (M. & V.)» §3003; 5 Pickle, 588; 2 Hum., 
202; 6 Lea, 543. 



188 NASHVILLE : 



Simmons v. Leonard. 



The attempted subscription by Cochran 19 incom- 
plete because his name, being signed by another 
person, is not accompanied by some mark or sign 
indicating his adoption of that other person's act. 
This Court has gone no further in liberal con- 
struction of the word subscribe than to hold that 
a person whose name is written by another, and 
icho makes his mark thprefOy is a good attestiug 
witness to a will. Fo7*d v. Ford^ 7 Hum., 96, 97. 

Though a mark so made is held to be a suf- 
ficient subscription, it is never advisable, where it 
can be avoided, to employ marksmen as witnesses. 
1 Jarman on Wills, 213. 

It seems to have been deemed sufficient not 
only because the name of the witness is written 
by his authority, but also because in making his 
mark he has a share in the writing, as when 
another person guides his hand and he makes his 
own signature. Chase v. Kittridge^ 87 Am. Dec, 
694; Jesse v. ParkeVy 52 76., 102; Montgomery v. 
PerkinSy Ib.^ 419. 

By statute the word *' signature, or subscription, 
includes a mark, the name being written near the 
•mark and witnessed." Code, §48. 

There is even a greater objection, if possible, to 
Cochran as a subscribing witness. Though not 
interested in the devise himself, Dr. Leonard, who 
w^rote his name for him, was the principal devisee 
under the will. This made the subscription utterly 
ineffectual. Cochran, though legally competent to 
become a subscribing witness, could not effectively 



DECEMBER TERM, 1891. 189 

Simmons v. Leonard. 

perform the act of subscription through another 
person, who was legally incompetent to become 
such witness in his own name and right. To 
permit the devisee to write the name of the sub- 
scribing witness would expose the will to little 
less danger of wrongful alteration and substitution 
than would exist if the devisee himself were al- 
lowed to become the witness ; * the same evil con- 
sequences would follow in the one case as in the 
other. If he may sign the name of one subscrib- 
ing witness, he may sign the name of both, and 
in that way become a more potent factor in the 
execution and probate of the will than if he were 
allowed to become a subscribing witness himself. 
He may not, lawfully, take the matter so largely 
into his own hands. A proper construction of the 
statute excludes the devisee from the doing of any 
act, even for the subscribing witness, which is 
essential to a valid subscription. 

Again, though identification has always been the 
main reason for requiring subscribing witnesses in 
the execution of wills, Cochran was not asked to 
identify the paper propounded in this case as the 
one he claims to have witnessed for Margaret Sim- 
mons. Presumably, he could not have done so if 
asked. Indeed, he shows affirmatively that he 
could not. He made no inspection of the instru- 
ment to which he requested Dr. Leonard to sign 
his name ; did not have sufficient eyesight to in- 
spect it. Hence, he could not afterward recognize 
it by its physical appearance. No name, mark. 



190 [NASHVILLE: 



Simmons v. Leonard. 



or sign did he impress upon it that subsequent 
recognition nnight be assured, or even rendered 
possible. Nor was he informed of its contents, 
so that he might thereby preserve ite identity 
in his memory. Of course it was not essential 
that the witness should be informed of the pro- 
visions of the will. HigdorCs Will^ 6 J. J. Mar- 
shall, 444 (S.* C, 22- Am. Dec, 84) ; 2 Barb. Ch., 
40; 16 Gray, 92; 13 Gray, 110; 1 Jarman, 213. 
Yet, if the information had been imparted, it 
might have served him as one means of future 
identification. 

It was hecessary, however, that something should 
occur, and that he should do some act (and that 
according to law), which, if remembered, would 
thereafter enable him to swear to the identity of 
the paper. If no such thing occurred, and no 
such act was done, then there was no valid sub- 
scription. 

We do not hold that the fact of due subscrip- 
tion can be shown alone by the subscribing wit- 
ness. On the contrary, it is well settled that such 
fact may be established by other persons, though 
his recollection fail him, or he become openly hos- 
tile to the will. Rose v. Allen, 1 Cold., 23 ; Jones 
V. Arterburn, 11 Hum., 98 ; Alexander v. Beadle, 7 
Cold., 128; 1 Metcalf, 349; 2 Barb. Ch., 40. 

But the proof of other persons will not suffice, 
unless it, in truth, shows that all formalities requi- 
site to a valid subscription were observed. There 
is no such proof of other persons in this case. 



DECEMBBR TERM, 1891. 191 

Simmons v, Leonard. 

Cochran states the whole transaction, so far as 
he had part in it, without lapse of memory or 
unfriendliness to the cause of proponent; and no 
one discloses any additional fact occurring at the 
time he is said to have subscribed the will. 

Whether the paper propounded is the same he 
attempted to subscribe or a different one cannot 
possibly be determined from the completest narra- 
tion of all that was then said and done. Speak- 
ing alone from the part he took in the matter, 
Dr. Leonard says it is the same. He recognizes 
his own handwriting in the name of the witness, 
and in that way, by something he did himself, and 
not by any thing the witness did, is enabled to 
make the statement. 

The necessity and use of his evidence for so 
important a purpose furnish a striking illustration 
of the correctness of our conclusion that Cochran's 
attempted subscription was inoperative in law, be- 
cause his name w^as written by a devisee under 
the will. . 

Aside from the questions already discussed, it is 
by no means clear ^that the paper referred to by 
Cochran was ready for subscription when he "was 
called upon to witness it. He does not know 
whether the testatrix had signed it or not. He 
did not see her signature, and no one told him 
it was on the paper. 

Since it is the signature of the testator that 
subscribing witnesses are to attest, there can be 
no valid attestation or subscription unless it be a 



192 NASHVILLE : 



Simmons ?'. Leonard. 



fact that the testator has actuaUy eigned his name, 
or caused it to be signed, before they subscribe 
their names. There is no will to witness until it 
has been signed by the testator. Chase v, Kittredge^ 
11 Allen, 49 (S. C, 87 Am. Dec, 687). See also 
Reed v. Watson^ 27 Ind., 448; 1 Jarman, 253, 254; 
Shaw V. Neville^ 33 Eng. L. and Eq., 615 ; Lewis 
V. Lewis, 1 Kernan, 220; Ragland v. Huntingdon^ 
1 Iredell,! 565; John Cox's Will, 1 Jones (N. C), 
324. 

It is not essential that the testator sign his 
name in the presence of the subscribing witnesses, 
nor that they actually see his signature at all. 
Ellis V. Smith, 1 Vesey, Jr., 11; 1 Jarman on 
Wills (R. & T.), 212, 213; Dewey v. Dewey, 35 Am. 
Dec, 367; 16 Gray, 92; 13 Gray, 110. 

The production of the will with his name signed 
to it, and in such a way that his signature may 
be seen by the witnesses, accompanied by a request 
of the testator that they witness it as his will, is 
a sufficient acknowledgment of the signature to 
render the will valid. lb.; Jauncy v. Thome, 45 
Am. Dec, 432; 1 Jarman, 254. 

In Tilden v. Tilden, 13 Gray, 110, the last of 
three subscribing witnesses neither saw the testa- 
tor's signature nor heard him make any allusion 
to it. Yet, in that case, it was held that the 
words, " I wish you to witness this," constituted 
a sufficient acknowledgment, when considered in 
connection with the fact that the testator, who 
used the expression, at the same time presented to 



DECEMBER TERM, 1891. 193 



Simmons v. Leonard. 



the witness for attestation a paper which he had 
already signed as his will, and to which he had 
procured the names of two other witnesses, who 
did see his name before they signed their own 
names. 

Giving the facts disclosed in this record the 
most favorable construction of which they are fairly 
susceptible, it may well be gravely doubted that 
the name of the alleged testatrix had been signed 
to the particular paper propounded at the time 
Cochran attempted to become a witness. 

It is true she is shown to have said to the 
witness that she desired him "to sign a will" for 
her; but she did not say any thing about having 
already signed it herself, nor did she produce it 
then or afterward. After she made that request 
she seems to have done nothing, except acquiesce 
in the production of some paper from her bureau 
by another person, and its presentment by him to 
the witness for the latter's name — that other person 
being the principal beneficiary, and the supposed 
testatrix being old and illiterate. 

Though allowed the same weight in this Court 
as the verdict of a jury ' {Eller v. Richardson^ 5 
Pickle, 576), the finding of the trial Judge, on the 
main question in this case, is without legal sup- 
port. That the contested paper was duly executed 
as the will of Margaret Simmons is not established 
by suflSicient competent proof. Ordinarily the testi- 
mony of one witness is entirely sufficient to sus- 
tain the finding of the Court or verdict of a jury 

13—7 p 



194 NASHVILLE : 



Simmons v, Leonard. 



upon an issue of fact; but that rule is not con- 
trolling in a case like this, where the law requires 
two witnesses to make out the matter in issue. 

The statute requires two competent subscribing 
witnesses in every devise of land, and nothing 
less than that will justify a judgment in favor of 
the will. The law prescribes the quantum of proof 
requisite in such a case; and neither the jury, 
nor Court sitting as a jury, is allowed to find in 
favor of the will on less evidence than that pre- 
scribed. 

There is no dispute as to the facts with refer- 
ence to Cochran's attempted subscription. Whether 
under those facts he was a competent subscribing 
witness is a question of law. We think he clearly 
was not. Then, in legal contemplation, there was 
but one subscribing witness, and the judgment in 
favor of the will was necessarily erroneous. 

Reverse and enter judgment here. 



DECEMBER TERM, 1891. 



198 



Woodall V, Foster. 



WooDALL r. Foster. 



91 186 
110 128 



(Nashville, February 4, 1892.) 



Real Estate Brokers. EniiiUd to commissions^ when, 

F., the owner of certain city lots, placed them in the hands of,W., a 
real estate agent, to be sold on commission. W.'s right to make 
sale was not exclusive. F. sold the lots himself on the day he placed 
them in W.'s hands, but gave no notice of this fact to the agent. 
W., by reason of F.'s urgent needs, was induced to put forth **a 
vigorous and special effort" to effect a speedy sale, and accordingly 
found a satisfactory purchaser upon F.*s terms within three or four 
days after undertaking the sale, and without notice that F. had 
effected a prior sale. 

Held: W. is entitled to the full commissions agreed upon for effecting 
a sale. 

Cases cited: Cheatham v. Yarbrough, 90 Tenn., 77; Eller v.. Richard- 
son, 89 Tenn., 576. 



FROM DAVIDSON. 



Appeal in error from Circuit C6urt of Davidson 
County. W. K. McAlistbr, J. 

E. A. Price for Woodall. 



W. D. Covington, C. C. Slaughter for Foster. 



196 NASHVILLE: 



Woodall 7'. Foster. 



Caldwell, J. The plaiiitifts are real estate 
agents, and as such they brought this action to 
recover the sum of $94.50 claimed to be due them, 
as commissions, from the defendants. The Circuit 
Judge tried the case without a jury, and rendered 
judgment for defendants. 

Plaintiffs have appealed in error. 

On September 6, 1890, defendants employed 
plaintiffs to sell certain lots of -ground, situated on 
Addison Avenue, in West Nashville, at $14 per 
front foot. Being advised by defendants that they 
were in need of money and desired an early sale, 
plaintiff's promptly advertised the property, and put 
forth "a vigorous and special effort" to effect a 
speedy sale. Three or four days after their em- 
ployment they procured a person who was ready, 
able, and willing to purchase the property at the 
price and on the terms directed by the defendants. 
On reporting this fact to the defendants, and re- 
questing that all necessary papers be prepared and 
the sale completed, plaintiffs were informed, for 
the first time, that defendants themselves sold the 
property at $12.50 per front foot on the same day 
tlioy listed it with plaintiffs. 

These facts, which are undisputed, make a clear 
case of liability on the part of defendants. Plaint- 
iffs comi)lied fully with their part of the contract. 
They did every thing they undertook to do, and 
performed every act devolved upon them by law; 
hence, they were entitled to compensation for their 
labor, the same as if the trade negotiated by them 



DECEMBER TERM, 1891. 197 

Woodall V. Foster. 

had been ultimately consummated. Its consum- 
mation was defeated by no default on their part, 
but alone by the voluntary act of defendants. 

It is true the defendants had the right to sell 
the property themselves, as they did, and that the 
sale, rightfully made by them, necessarily prevented 
the completion of the subsequent sale put on foot 
by plaintiffs; but it by no means follows that 
plaintiffs were thereby deprived of their right to 
compensation. When defendants sold the property 
it became their duty to notify plaintiffs of that 
fact, and until that was done the contract relation 
between them continued. 

After defendants sold their property they re- 
mained silent as to the fact t)f sale at their peril, 
so far as the plaintiffs were concerned. It would 
be unjust to permit the agent to go on in the 
work of his principal until he has accomplished all 
he was employed to do, and then tell him, when 
the labor was done and expense incurred, that he 
should receive no compensation, because the prin- 
cipal, though without notice to him, had by other 
means attained the desired end. 

In Cheatham v. Yarbrough^ 6 Pickle, 77 (S. C, 
15 S. W. R., 1076), this Court said: ^'The just 
and well-settled rule of law requires that the agent 
shall be paid his compensation when he procures 
a purchaser who is acceptable to the principal, and . 
who is ready, able, and willing to buy on the 
agreed terms, though in fact the sale be not con- 
summated; provided its consummation is prevented 



198 NASHVILLE : 



Woodall V. Foster. 



by the fault, refusal, or defective title of the prin- 
cip'al.'' 

The doctrine of that case, which is sustained by 
the authorities, controls this one. In that case, as 
in this one, the agent did all that was incumbent 
upon him to do, and the sale was defeated with- 
out any fault on his part. There it failed on 
account of a defect in . the principal's title, of 
which the agent had no knowledge; here it failed 
because the principal voluntarily conveyed his title 
to another person, pending the agency and with- 
out any notice to the agent. 

Of the two cases, if there is any material differ- 
ence between them, this is the stronger one for 
the agent; for in this case the principal divested 
himself of a good title after employing the agent, 
while in that one the principal was simply un- 
fortunate in not having such title as the proposed 
purchaser would accept or could be required to 
take. 

Plaintiffs contended below and insisted here that 
defendants gave them the exclusive rights for the 
period of eight days, to sell the lots. Defendants 
disputed that proposition, and evidence 'pro and con 
was introduced. The trial Judge found that no 
exclusive right of sale, for any length of time, was 
given to plaintiffs. That finding, upon a disputed 
question of fact, is conclusive in this Court, being 
of the same weight as the verdict of a jury, and 
having material evidence to support it. Eller v. 
Richardson^ 5 Pickle, 576. 



DECEMBER TERM, 1891. 199 

Woodall V, Foster. 

^^^^    ^'     »— ^ ■— III ^   I I  »  I — ^^— ^-^^ 

Taking the facts to be as found by the trial 
Judge, we are of opinion that he erroneously ap- 
plied the law. 

Reverse, and enter judgment here for the plaintiffs. 



200 NASHVILLE : 



Stone Company ;'. Board of Publication. 



Stone Company v. Board of Publication. 
{Nashville. February 9, 1892.) 

Mechanics' Lien. Furnisher of materials to subcontractor not entitled to. 

The furnrsher of building materials to a subcontractor has not, under 
our statutes, a mechanics' or furnisher's lien upon the property con- 
structed, built, or repaired therewith. 

Code construed: ^ 2739, 2746 (M. & V.); ^ 1981, 1986 (T. & S.). 

Cases cited: Stevens v. Wells, 4 Sneed, 389; Greenwood v, Tennessee 
Manufacturing Company, 2 Swan, 130; Iron Company v. Bynum, 3 
Sneed, 269; 17 Wend., 550; 23 /</.„395; 29 Ohio St., 227; 27 
Penn., 511. 



PROM DAVIDSON. 



Appeal from Chancery Court of Davidson 
County. Andrew Allison, Ch. 

Frizzell, Zarecor & Coles for Stone Company. 

John M. Gaut, Hamilton Parks, and Dickinson 
& Frazbr for Board of Publication. 

LuRTON, J. The point for decision is as to 

whether one who furnishes materials to a subcon- 
tractor is within the provisions of Code, § 2739 



DECEMBER TERM, 1891. 201 

Stone Company v. Board of Publication. 

et seq., giving a lieu to contractors, mechanics, and 
furnishers of materials. 

Section 2739 gives a lien "upon any lot of 
ground or tract of land upon which a house has 
been constructed, built, or repaired, * * * 
by special contract with the owner or his agent, 
in favor of the mechanic or undertaker, founder 
or machinist, who does the work or any part of 
the work, or furnishes the materials or -any part 
of the materials," etc. 

This section is substantially the first section of 
the Act of 1846, Ch. 118. 

By §2746 this lien is extended to "every 
journeyman or other person employed by such 
mechanic, founder, or machinist to work on the 
buildings, fixtures, machinery, or improvements, or 
to furnish materials for the same." 

This section is in substance the second section 
of the Act of 1846. 

By a careful reading of these sections it will be 
seen that the one first quoted gives the lien only 
to the mechanic or undertaker, founder or machin- 
ist, who by special contract with the owner of the 
lot does the work or furnishes materials. If the 
law had stopped here, none but original contractors 
would be entitled to the lien. But by the next 
section quoted the benefits of this lien are extended 
to all persons who shall be employed by ^^ such 
mechanic^ founder^ or machinist to work on the 
buildings, * * * or to furnish materials for 
the same." Thus subcontractors^ upon complying 



202 NASHVILLE : 



Stone Company 7\ Board of Publication. 



with the other provisions of the law, were brought 
within the meaning of the Act. Complainant is 
not a contractor who has furnished materials, and 
it is therefore not within § 2739. Neither has it 
been employed to furnish materials by a contractor. 
Therefore it is not entitled to stand upon the 
section relating to subcontractors. It is, however, 
claimed that the Act of 1860, Ch. 114, so extends 
this lien "as to embrace the case of a contractor 
in the third degree. This Act reads as follows: 
"That §1981 of the Code (being §2739 of com- 
pilation of Milliken & Vertrees) be so amended 
that the benefits of said section shall apply to all 
persons doing any portion of the work, or furnish- 
ing any portion of the material for building con- 
templated in said section." 

To understand the intent of the Legislature by 
this amendment, we must look to the history of 
this mechanics' lien law. It is only necessary to 
go back to the Act of 1846. This Act, by its 
first section, gave the lien to "any mechanic 
or undertaker by special contract with the ownerJ^ 
By the second section of this Act this lien was 
extended to the "journeyman workmen of said 
mechanic or undertaker, or such other person or 
persons as may be employed by him or under him 
to do any part of the loork or furnish any of the 
said material,^' This Act had been construed as 
giving the lien by the first section only to one 
who was a ^'mechanic or undertaker^' of the con- 
tract. The second section applied only to such 



DECEMBER TERM, 1891. 208 

Stone Company v. Board of Publication. 

persons as were employed by ^^such mechanic or 
undertaker'^ to do work or furnish material. It 
was therefore held that, as the owner was neither 
a mechanic nor undertaker, one who sold him 
lumber, to be used in his house, had no lien. 
Stevens v. Wells, 4 Sneed, 389. It did not extend 
to a merchant who sold the owner machinery to 
put up in a flouring-mill. Greenv^ood v. Ihinessee 
Manufacturing Company, 2 Swan, 130. Neither did 
it extend to a manufacturer who furnished and 

« 

put up machinery in a steam tannery. East Ten- 
nessee Iron Manufacturing Company v. Bynum, 3 
Sneed, 267. 

The Act was widened, as carried into the Code 
of 1858, so as to add to the " mechanic or under- 
taker" the "founder or machinist." This amend- 
ment met the difficulty pointed out by the cases 
of Greenwood and Bynum, but did not cover the 
trouble pointed out by Stevens v. Wells, 4 Sneed, 

• 

where it was held that one who furnished mate- 
rials to the owner of the house, and upon con- 
tract with him, had no lien, because, said Judge 
Harris, such persons " are neither mechanics who 
have worked on the house, nor are they under- 
takers for its construction, nor have they furnished 
materials to the mechanic or undertaker." 

The Act of 1860 amends § 2739 in such manner 
as to meet the last of the series of decisions 
mentioned. But this amendment in no way affects 
§ 2746. The amended section relates alone to a 
limited class of persons who have special contracts 



204 NASHVILLE : 



Stone Company v. Board of Publication. 



^oith the owner. Section 2746 relates to a class of 
persons who, without any contract with the owner, may 
acquire a lien. The section amended gave the 
lien only where the materials were furnished by a 
mechanic or undertaker or founder or machinist 
having a special contract with the owner. By the 
amendment the lien is extended to " all persons " 
who have a special contract with the owner, who 
do any part of the work or furnish any part of 
the materials. The thing essential to the lien 
given by the amendment is that the person claim- 
ing it shall have a special contract with the owner 
for the work or material. If it had been intended 
to extend the lien to a contractor in the third or 
fourth degree removed from the owner, or to any 
creditor of a remote subcontractor, then § 2746, 
which relates alone to persons having no contract 
with the owner, should have been amended. To 
justify a construction which would extend this 

• 

lien to remote contractors or creditors of subcon- 
tractors, the statute should be so plain as to admit 
of no doubt. Such a construction would operate 
with great . severity upon both the owner and con- 
tractor. Upon the contractor, in the present state 
of the law, such a lien would be most oppressive. 
His own contract might be a prudent one. His 
contracts with subcontractors might be such as to 
leave* him a margin of profit. But if the contract 
price to be paid by the owner is to be subjected 
to the improvident agreements of the subcon- 
tractors, over whose contracts he has no control, 



DECEMBER TERM, 1891. 205 



Stone Company 7>. Board of Publication. 



he is left without protection, unless he requires 
such bond as most small contractors would be 
unable to give. The strong tendency of judicial 
opinion has been against any construction extend- 
ing these liens to the creditors of subcontractors. 
Wood V. Donaldson., 17 Wend., 550, and 23 Wend., 
395; Stephens v. United Railroad^ 29 Ohio St., 
227; Harris v. Rand, 27 Penn., 511. 
Decree affirmed. 



206 NASHVILLE 



Roach V, Woodall. 



Roach v. Woodall. 
{Nashville. February 11, 1892.) 

1. Negotiable Instruments. Holder as collateral an innocent holder. 

The bona fide holder of a negotiable note transferred to him before its 
maturity, as collateral securityi upon a valid and sufficient considera- 
tion accruing at the time of its transfer, will be protected as an inno- 
cent holder for value in due course of trade. 

Case cited and approved: Nichofz/. Bate, lo Yer., 429. 

Cited and distinguished: Craighead v. Wells, 8 Bax., 3S. 

2. Same. Holder by ivrongful transfer not protected. 

The holder of a negotiable note cannot retain it against the payee, 
though otherwise entitled to protection as an innocent holder, where 
he took the note, being payable to order, from a person other than 
the payee or an indorsee; the payee never having in fact indorsed 
the note or authorized its transfer, although his indorsement was 
forged thereon. 

Case cited and overruled : Duke v. Hall, 9 Bax., 282. 

3. Same. Infantas indorsement. 

It is strongly intimated, though not authoritatively decided, that an 
infant's indorsement of a negotiable note is void in every case. But 
if not void, it is clearly voidable, the indorsee being chargeable with 
notice of the indorser's infancy. 

Case cited and approved: McMinn v„ Richmond, 6 Yer., 9; 



FROM DAVIDSON. 



Appeal from the Chancery Court of Davidson 
County. Andrew Allison, Ch. 



!• 



DECEMBER TERM, 1891. 207 

Roach V, Woodall, 

Matt. W. Allen and Stokes & Stokes for 
Roach. 

Champion, Head & Brown for Woodall. 

Snodgrass, J. Isaac Whitworth sold to J. B. 
and William Hartraan a tract of land, taking in 
part consideration therefor the following note, pay- 
able to his minor son : 

"January 21, 1878. 

" Thirteen years after date we promise to pay 

to the order of Milton J. Whitworth five hundred 

dollars, being fourth payment for a tract of land. 

Value received. 

"John B. Hartman, 

"William Hartman." 

The note subsequently came into the possession 
of Defendant Woodall, as guardian of the minor 
payee. 

Woodall delivered the note to Defendant W. I. 
Cherry in 1889, and before it was due, as collat- 
eral security for Cherry's indorsement of Woodall's 
note in bank for $500, which last note Defendant 
Cherry subsequently paid as indorser. 

At the time the note in controversy was deliv- 
ered it had indorsed upon it the name of Milton 
J. Whitworth, the payee. Cherry did not know 
Whitworth, or that he was a minor at the time, 
nor that Woodall was his guardian. Woodall did 
not transfer as guardian, or pretend to do so. 



208 N"ASIIVILLE : 



Roach 7'. Woodall. 



lie claimed to be a purchaser of the note from 
Whitworth, and to own the note, and under this 
claim delivered it, thus indorsed, to Cherry. 

The indorsement was a forgery; and after the 
death of Milton J. Whitworth, who died before 
he became of age, S. H. Roach administered upon 
his estate, and filed this bill to recover of Defend- 
ant Cherry the note, and to collect it of the De- 
fendants Hartman. 

Cherry defended upon the ground that he was 
an innocent purchaser for valuable consideration, 
and without notice. The Chancellor decreed in fa- 
vor of complainant, and Cherry appealed. 

Assuming that Cherry took the note as consid- 
eration for his indorsement of Woodall's note at 
the time or before the delivery of the Whitworth 
note to him, he would be a holder for value and 
in due course of trade. Nichol ^ Hill v. Bate^ 
10 Yer., 420. 

A different result would follow if received after 
he had incurred the liability, and took it merely 
as security for a pre-existing debt. Craighead v. 
Wells, 8 Bax., 38. 

The complainant insists that the testimony of 
Mr. Cherry is not sufficiently specific to show that 
he in fact received the note in consideration of 
the indorsement; but that all he says may be 
taken as true, and yet it may have been delivered 
to him to secure him after he had incurred this 
liability. 

Waiving this question, and for the purposes of 



DECEMBER TERM, 1891. 209 

Roach V. Woodall. 

this opinion treating his evidence as affirmative- 
tliat the indorsement was made upon this con- 
sideration — we consider the effect of the deliv- 
ery to Cherry of this . note with the forged in- 
dorsement of the payee, leaving for the time out 
of view the fact that the supposed indorser was a 
minor. Does such a holder obtain title to the 
note, and can he defeat the true owner, the payee, 
or his representative, who seeks to recover it from 
him? It is assumed in argument of defendant's 
counsel that this proposition was decided in the 
affirmative by our predecessors in this Court in 
1878. Duke v. Hall, 9 Bax., 282. 

As stated in the opinion of the Court in that 
case, the note in controversy was one made by 
A. D. Hurt payable to Allen Deberry, and by him 
*' indorsed to J. W. Glass." This note, without 
indorsement by J. W. Glass, was placed by him 
in the safe of J. E. Glass. The latter, without 
authority, indorsed the name of J. W. Glass upon 
it and transferred it to an innocent purchaser or 
holder for value. This holder transferred to an- 
other. The suit was by the assignee of J. W. 
Glass, the real owner, against the last purchaser, 
and it was held that he was not entitled to re- 
cover. The statement in the opinion is that the 
note was ''indorsed by the payee to J. W. Glass." 
Whether it is meant that this indorsement was in 
terms to him or whether it was indorsed in blank 
and delivered to him, is not clear, but treating 
the language quoted as showing that it was not 

14^7 p 



210 NASHVILLE : 



Roach V. Wood all. 



indorsed in blank, but to J. W, Glass by name, 
it put the title in him, and required his indorse- 
ment to pass it out of him, and this is elsewhere 
assumed in the opinion. Still it is not the exact 
case presented here, because there the note ^was 
first properly indorsed by. the payee to another, 
while here there never was any indorsement put 
upon it by the payee. But regarding that indorse- 
ment as to J. W. Glass by name, as it purports 
fairly to have been in the language of the opin- 
ion, there is no difference in principle in that case 
and this, because there as here it was payable to 
a particular person or his order — in that case by 
indorsement, in this on its face; and if that case 
is correctly decided, it is conclusive of this. In 
that case Judge Freeman, delivering the opinion, 
quoted from Kent the principle assumed to au- 
thorize it, as follows : 

" The bona fide holder can recover on the paper, 
and gets a good title to it, though it come to 
him from a party who had stolen or robbed it 
from the true owner, provided he took it inno- 
cently in the due course of trade for a valuable 
consideration not overdue, and under circumstances 
of due* caution, and he need not account for his 
possession unless suspicion is raised." 8 Kent, 
78, 79. 

The quotation was a very clear and accurate 
statement of the law as recognized generally by 
text-writers and Courts where it applies; but it 
was not made by the author in reference to paper 



DECEMBER TERM, 1891. 211 

Roach V. Woodall. 

stolen from the payee before indorsement by him, or 
to paper which required indorsement to be made 
before title could be passed, and which was subse- 
quently forged, but related to negotiable paper 
payable to bearer, or indorsed in blank ' before 
stolen, and thus made payable to bearer, in which 
case the thief had nothing to do but deliver the 
paper, with or without further indprsement, to a 
hona fide purchaser, as the preceding part of the 
paragraph (not quoted by Judge Freeman) clearly 
shows. That part was as follows: 

"Possession is prima facie evidence of property 
in negotiable paper payable to bearer or indorsed in 
blank; and the bearer, though a mere agent, or the 
original payee, when the indorsement is in blank, 
may sue on it in his own name without showing 
title, unless circumstances appear creating suspicion." 

When Mr. Kent adds, "the bona fide holder 
can recover upon the paper," the reference is to 
such paper — that is, to paper transferable by de- 
livery, payable to bearer, or having upon it a 
valid indorsement in blank when stolen — and it is 
only to such paper that the rule applies under all 
the authorities. The distinction is very clear be- 
tween the transfer of such paper and the attempt 
to transfer paper stolen or obtained without au- 
thority, not payable to bearer or indorsed in blank 
when stolen or so obtained. In the latter case 
no title can be passed to an indorsee or trans- 
ferred by reason of a forged indorsement, as against 
the l>arty whose indorsement is forged. Daniel on 



212 NASHVILLE: 



Roach 7'. Woodall. 



Neg. Insts., Sees. 677, 1354, 1469; Parsons on Notes 
and Bills, Vol II., p. 284; Story on Prom. Notes, 
Sees. 381, 382, 383. 

Authorities on this point need not be multiplied 
in citation — there are none to the contrary. The 
distinction was overlooked in the case of Duke v. 
Hall^ 9 Baxter, and the holding on this point in 
that case was not the law, and to that extent it 
is overruled. 

Another question decided by the Chancellor was 
that the indorsement might be avoided by com- 
plainant and the note recovered because of the 
minority of the payee — the supposed indorser. 

Under the decisions in this State and others the 
indorsement might well have been held to be void. 

Mr. Story, in his, work on Promissory Notes, 
Sees. 77-80, puts upon the same ground the minor's 
incapacity to indorse and make a promissory note, 
and shows that there is a conflict of opinion as 
to whether such act is void or voidable. 

The Court of this State has ranged itself with 
those holding the making of a negotiable note by 
a minor, even for necessaries, a void act, and this, 
after full discussion, upon the weight of authority. 
McMinn v. Richmond , 6 Yer., 9. 

Mr. Story thought the weight of authority pre- 
ponderated in favor of holding promissory notes 
given or indorsed by an infant voidable only. 
Sec. 78. But, treating it from this stand-point, he 
dechires the law to be well settled that not only 
may the infant avoid it and intercept payment to 



DECEMBER TERM, 1891. 213 



Roach v. Woodall. 



the indorsee, but by giving notice to the anteced- 
ent parties of his avoidance, furnish to them a 
valid defense against the claim of the indorsee. 
Sec. 80. 

It would seem clear, then, that whether such 
indorsement were void or voidable, the minor or 
his representative might avoid it and recover the 
note of the transferee, and that this is not only 
a well-settled but a just rule of law; for a trans- 
feree who receives by delivery merely from bearer 
a note with the name of another indorsed upon 
it, ought to be charged with notice who that in- 
dorser was, and whether a person who could in 
law bind himself by an indorsement. If he does 
not in fact know the indorser, he would hardly 
predicate any thing of an indorsement, or rely on 
it without inquiry. Such inquiry would disclose 
the minority of the indorsee, and, consequently, it 
might well be holden that the transferee was 
chargeable with notice of the invalidity of the in- 
dorsement. 

But as the minor did not in fact indorse the 
note in controversy, these questions do not neces- 
sarily arise or call for decision, and we therefore , 
rest the decision upon the ground already stated — | 
the invalidity of the transferee's title under the ' 
forged indorsement. 

The decree is affirmed with cost. 



214 NASHVILLE: 



Catholic Knights v. Kuhn. 



Catholic Knights y. Kuhn. 
{Nashville. February 13, 1892.) 

1. Life Insurance. ConsiituHon and by-laws of mutual benefit associations 

constitute part of contract. 

The constitution and by-laws of a mutual beneBt association are, by 
implication, imported into and become part of the contract of insur- 
ance made by it upon the life of a member. 

Case cited and approved: Tennessee Lodge r*. Ladd, 5 Lea, 720. 

2. Same. Construction of mutual benefit certificates. 

In 1882 H., being a member of a mutual benefit association, procured 
the issuance of a benefit certificate upon his life for $2,000. This 
certificate was made payable to his brother. In 1887 H. voluntarily, 
but without his brother's consent, surrendered this certificate and 
obtaine'd another for a like sum payable to himself. This latter cer- 
tificate he bequeathed to K. At date of issuance of the first certificate 
the "laws of the order" prescribed that a certificate could be sur- 
rendered and changed only "with the consent of the beneficiary in- 
dorsed." Another provision of these laws was that any law of the 
order might **be amended at any regular meeting of the supreme 
council." After issuance of the first certificate to H., and before the 
issuance of the second, the laws were amended so as to authorize 
change and substitution of certificates without consent of the bene- 
ficiary. 

Held'. That K., the legatee under H.'s will, was entitled to the $2,000 
fund. The brother's interest was defeasible, and was defeated by 
substitution of the new certificate after the change in the laws of the 
order. 

Cases cited and approved: 8 S. \V. R., 38; 28 Minn., 449; 63 N. H., 
535; 3S. W. R., 427. 

3. Same. Bequest of benefit certificate valid. 

And the assured may dispose, by will, of such benefit certificate where 
it is, upon its face, made payable to himself. 



DECEMBER TERM, 1891. 



215 



Catholic Knights v. Kuhn. 



Cases cited and approved: Rison v, Wilkerson, 3 Sneed, $65; Tennes- 
see Lodge V. Ladd, 5 Lea, 721; Williams v. Carson, 2 Tenn. Ch., 
269; Weil V, Trafford, 3 Tenn. Ch., 108. 



4. Same. Same, 

And no question can be made in such case as to the legatee's insurable 
interest in the deceased. 



FROM DAVIDSON. 



Appeal from Chancery Court of Davidson County. 
Andrew Allison, Ch. 

Frank Johnson and E. L. Gregory for Com- 
plainants. 

J. W. Bonner and Bryan & Cartwright for 
Defendants. 



Caldwell, J. This is a bill of interpleader, 
filed by the Catholic Knights of America, a mutual 
benefit association, against C. B. Kuhn and William 
Hup)pert, to have the Court determine which of 
the two defendants is entitled to the proceeds of 
a ?2,000 benefit certificate, issued by complainant 
to Peter Hupp)ert, deceased, upon his life. 

At different times, during his membership in the 
association, Peter Huppert held two of its benefit 
certificates ; one issued April 18, 1882, the other 



216 NASHVILLE : 



Catholic Knights v. Kuhn. 



June 28, 1887, The first one was payable, on its 
face, to defendant, William Huppert, a brother of 
the assured ; but, after running about five years, it 
was voluntarily surrendered by Peter Huppert, and, 
at his instance, the second one was issued in its 
stead, payable to the assured himself as beneficiary. 
This second certificate the assured bequeathed to 
the other defendant, C. B. Kuhn, charged with 
certain debts and trusts mentioned in his will. 

After the death of Peter Huppert each of the 
defendants claimed the $2,000. Thereupon this bill 
was filed, and the defendants became the active 
and adverse parties in the litigation. 

William Huppert, in his answer, averred that he 
took a vested interest in the first certificate, of 
which he could be deprived only by his consent, 
and that the attempted change in the beneficiary 
was illegal . and void, because made without his 
consent. 

Kuhn, answering, insisted that the change was 
authorized by the law of the order, that it was reg- 
ularly made, and that he was entitled, under the 
will, to receive the fund. The Chancellor's decree 
was in favor of Kuhn, and Huppert appealed. 

The constitution and by-laws of the order, so 
far as applicable, entered into and formed part of 
the contract with Peter Huppert; those laws, in 
connection with the words of the certificate, con- 
stituted the contract of insurance in its proper and 
legal sense. Bacon on Benefit Societies and Life 
Insurance, Sees. 161, 184, 185. 



DECEMBER TERM, 1891. . 217 



Catholic jKnights p. Kuhn. 



Though not stated in so many words, this rule 
of construction was recognized and applied by this 
Court in Tennessee Lodge v. Ladd, 5 Lea, 720, 721. 

The language of the first certificate, with refer- 
ence to the member's right to change beneficiaries, 
is as follows: 

"Said Peter Iluppert shall have the right, dur- 
ing his membership in the order, to surrender this 
certificate and receive a new one; and may sub- 
stitute another beneficiary or beneficiaries therein, 
if he so desires, by complying with the laws of 
the order upon this subject." . 

*'The laws of the order" then existing, pre- 
scribed the mode of substitution, and authorized it 
to be made only " with the consent of the bene- 
ficiary indorsed" on the certificate surrendered. 

In this case it turns out, as a matter of fact, 
that William Huppert, the beneficiary in the first 
certificate, not only did not consent to the change 
in the manner prescribed, but he had no notice 
whatever that a change was contemplated, and 
never in any way assented to the issuance of the 
second certificate. 

Therefore it would seem, nothing else appearing, 
that he was not bound by the change, and that 
the second certificate was illegal and void, because 
issued without the requisite authority. But there 
was another law of the order *which likewise 
formed an important part of the contract, and that 
was that any of its laws might " be amended 
at any regular meeting of the supreme council." 



218 NASHVILLE : 



Catholic Knights .z'. Kuhn. 



Tliat provision, as well as the one allowing a 
change only "with the consent of the beneficiary," 
is to be considered in connection with the words 
of the certificate; it, too, was a part of the con- 
tract in which William Huppert was named as 
beneficiary. From this it follows, n'ecessarily, that 
' he, as beneficiary, had no fixed and unalterable 
rights, and none that he could make so by simply 
failing or refusing to consent to the substitution 
of another beneficiary in his stead. All his rights 
were subject to the order's reserved power of 
amendment. The cojitract, as gathered from the 
terms of the certificate and the laws of the order 
applicable thereto, was (1) that, in case Peter Hup- 
pert, the assured, should die before changing the 
beneficiary, William Iluppert should receive the 
$2,000; (2) that a change of beneficiary, as the 
law then existed, could be legally effected only by 
and with the consent of William Iluppert indorsed 
on the certificate, and. (3) 'that the existing req- 
uisites to a valid change of beneficiary were sub- 
ject to amendment by action of the supreme 
council of the order issuing the certificate. 

Subsequently, in May, 1885, the supreme coun- 
cil, in exercise of that reserved right, did amend 
the law relating to the substitution of one certifi- 
cate for another one, so as to authorize a change 
of beneficiary without the consent of the beneficiary 
named in the certificate surrendered. Two years 
after that amendment, and in strict conformity 
to the requirements of the law as amended, the 



DECEMBER TERM, 1891. 219 



Catholic Knights r. Kuhn. 



first certificate taken out by Peter Huppert was 
surrendered and the second one issued in its room 
and stead. Thus the first certificate ceased to 
have any legal existence, and the second one came 
into full force and virtue. By the substitution 
the conditional or contingent right of William 
Huppert, as beneficiary, was entirely extinguished, 
and the order became bound according to the 
terms of the second certificate, which was out- 
standing and in the hands of the assured at the 
time of his death. This conclusion is inevitable, 
when it is considered that the laws of the order 
are, by implication, imported into and made part 
of the contract. 

Byrnes v. Casey, 8 S. W. R., 38, is a case 
precisely in point. There, as here, the question 
was upon a substituted certificate, issued by the 
Catholic Knights of America, the change having 
been made withput the consent of the beneficiary 
named in the first certificate, but after an amend- 
ment dispensing with the necessity of such con- 
sent. The substitution was held to be legal, and 
to deprive the first named beneficiary of all right 
of participation in the fund. See also, to sub- 
stantially the same efteet, Eichniond v. Johnson, 28 
Minn., 449; Barton v. Association, 63 N. H., 535; 
Bacon, Sees. 305-307; Schillinger v. Boes, 3 S. W. 
R., 427. 

The second certificate before us, being payable' 
on its face to Peter Huppert, the assured, was a 
part of his property, and as such subject to dis- 



220 



NASHVILLE : 



Catholic Knights v. Kuhn. 



position by will. Rison v. Wilkersoriy 3 Sneed, 
565; Williams v. Carson, 2 Tenn. Ch., 269; Weil 
V. Trafford, 3 Tenu. Ch.,  108 ; Tennessee Lodge v. 
Laddj 6 Lea, 721. 

Having been bequeathed to Defendant Kuhn, he 
became the lawful owner of it, and is entitled to 
receive its proceeds, subject to the debts and 
trusts mentioned in the will. 

Appellant's contention that Kuhn can, at most, 
take only a sufficiency of the fund to pay debts 
due him, on the ground that such sum was the 
measure of his insurable interest in the deceased, 
is not well made. The rule of law invoked has 
no place in a case like this. Kuhn takes the 
fund, not because of any insurable interest in the 
life of Peter Huppert, but alone as legatee or 
beneficiary under his will. 

Affirm. 



\ 



DECEMBER TERM, 1891. 221 

A . 

Smith V, Railroad. 



Smith v. Railroad. 
{Nashville. February 23, 1892.) 

1. Corporation Bonds. Innocent purchase from trustee. 

The purchase of negotiable corporation bonds from the ostensible 
owner, though he be in fact only a trustee and his sale in breach of 
trust, confers pefect title upon the buyer even against the cestui gue 
trust, if the purchase was in good faith, for full value, and without 
knowledge or notice, actual or constructive, of the existence of the 
trust. {Post, pp. 224-228,) 

2. Same. Same. Innocent agents protected. • 

And persons innocently aiding in such purchase incur no liability to 
the cestui que trtist, {Posty pp. 224-228. ) 

3. Corporations. Re-issue of stock certificates to assignee. Negligence. 

Stock certificate assigned to ** heirs and distributees'' of original stock- 
holder by his ** administrator" was presented by a distributee, to 
whom a new certificate was issued individually and for his own bene- 
fit. ^The corporation was ignorant that the original stockholder had 
died testate, limiting by his will the interest of this distributee, who 
was also a legatee, to a life estate in personalty, and creating a trust 
' in remainder. 

Held: Corporation not guilty of negligence in making this re-issue. It 
was not put upon inquiry as to will and its trusts. [Post, pp. 22g, 

Cases cited and distinguished: Covington v. Anderson, 16 Lea, 310; 
Caulkins v. Gas Company, 85 Tenn., 683. 



Same. Same. Same. 

Bequest of ** one-fifth in value " of testator's personal estate to a legatee 
for his own life, and to be preserved in remainder and held in trust 
for another. The administrator cum testamento annexo delivered stock 
certificates to this legatee in payment of this legacy, assigning them 
absolutely to the *' heirs and distributees" of the testator, and the 



222 NASHVILLE : 



Smith V. Railroad. 



corporation, without notice of the will, issued new certificate in like 
terms to this assignee and legatee. 

Held: The administrator^^w/w Ustamento antuxo was not guilty of breach 
of trust in making absolute assignment of the stock certificates in 
payment of such legacy, and, a/oriion\ the corporation was not guilty 
of negligence in issuing new certificates according to terms of assign- 
ment. {Post, pp. 224y 22g, 230,) 

5. Same. Same, Same. 

But, assuming negligence of the corporation in such case, by reason of 
its failure to ear-mark the new stock certificates with the trusts im- 
posed by the will, still that negligence is not proximate cause of loss 
where the stock certificates did, nevertheless, go into the hand«i of 
the proper trustee and were subsequently lost by reason of his inde- 
pendent acts of negligence. {Post, p, 2ji.) 

6. Same. Sanu, Same. 

Upon transfer of the original stock certificate by the person to whom it 

• 

was issued, and in whose name it stood ;upon the company's books, 
the corporation issued a new certificate to the assignee. The original 
stockholder held the certificate as a trustee, and made the assignment 
in breach of his trust, and misapplied the proceeds real'zed from the 
sale of this stock. The corporation had no knowledge of the trust. 

Held: Corporation not liable to cestui que trust for their loss. It was 
guilty of no negligence. {Post, pp. 232-234.) 

Cases cited: 97 U. S., 369; 127 U. S., 614; 96 U. S., 193;^ 7 N. Y., 
274; 125 Mass., 138; 42 Md., 384; 44 Md., 551. 

« 

7. Same. Same. Same. 

Although the corporation had full knowledge of the breach of trust on 
the part of the original stockholder in making the transfer of the 
certificate, still the corporation cannot incur any liability to the cestui 
que trust for issuing the new certificate, if the assignee was entitled 
to be protected as an innocent holder of the original certificate. He 
could compel the corporation to recognize him as a stockholder in 
such case. {Post, pp. 23^-23^.) 

8. Same. Assignment 0/ stock confers title without registration upon company s 

books. 

And assignee's title to shares of stock is complete, and, being otherwise 
an innocent purchaser, he is entitled to protection, and to enforce his 



DECEMBER TERM, 1891. 



223 



Smith V, Railroad. 



rights as such without and before registration of his transfer upon 
the books of the company. i^Post^ p. 2j8.) 

Cases ciled and approved : Cherry v. Frost, 7 Lea, i ; Caulkins v. Gas 
Company, 85 Tenn., 684; Hadley v. Kendrick, 10 Lea, 525; Bank 
V. Farrington, 13 Lea, 333; Bank v. Planing Mill Co., 86 Tenn., 
252; II Wall., 377. 

Cited as disapproved: Cornick ?'. Richards, 3 Lea, I. 

9. Same. Assignment of stock by infant voidable but not void. 

Infant's assignment of shares of stock is only voidable and not void. 
Therefore, the corporation is not only protected in acting upon such 
assignment until it is avoided by the infant, but may be compelled to 
recognize it. (Post, pp, 2j% 240.) 

Cases cited and approved: Wheaton v. East, 5 Yer., 61; McGan v. 
Marshall, 7 Hum., 125; Barker v, Wilson, 4 Heis., 269. 



FROM DAVIDSON. 



/ 



Ai)peal from the Chancery Court of Davidson 
County. Andrew Allison, Ch. 

N. N. Cox, Jones & Houston, A. D. Marks, 
and Pitts & Meeks for Smith. 

G. N. & A. M. Tillman, Demoss & Malone, 
and Cook & Marshall for Railroad. 



LuRTON, J. Under the will of Jos. W. Baugh, 
certain real estate and the "one-fifth part in 
value" of his personal estate, was bequeathed to 



224 NASHVILLE : 



Smith z: Railroad. 



the complainant, his daughter, then Fannie F. 
Baugh, subject to the following limitations: 

"To have and to hold the same, together with 
the increase, rents, and profits thereof, to her sole 
and separate use and benefit, and free from the 
debts, contracts, liabilities,, and control of any hus- 
band whom she may marry, and for and during 
the term of her natural life; and at her death 
the said property, real and personal, together with 
the increase, rents, and profits thereof not con- 
sumed in her support and maintenance, and the 
support and maintenance and education of her 
children, to be equally divided between the chil- 
dren of the said Fanny, the child or children of 
any deceased child to take the share its parent 
w^ould have taken if living. But should the said 
Fanny depart this life leaving no child or children, 
or the issue of such, then, in that event, the prop- 
erty herein bequeathed to her, and its increase, 
etc., shall .be equally divided between her brothers 
and sisters surviving her, and the issue of such 
as may be dead leaving issue. And should it be- 
come necessary, in giving full force to this item 
of my will, I desire that suitable trustees be ap- 
pointed, it being distinctly my will and desire to 
give to my said daughter a life estate merely, with 
remainder over as hereinbefore mentioned." 

Testator owned, at his death in 1872, fifty-seven 
bonds of five hundred dollars each, issued by the 
defendant railway company. He also owned one 
thousand tw^o hundred and fifty shares of the com- 



DECEMBER TERM, 1891. 225 

Smith V. Railroad. 

• 

mon stock of the same corporation, for which he 
held stock certificates, registered on the books of 
the company in his own name. 

No executor being named in the will, Mr. S. 
S. House was appointed and qualified as adminis- 
trator with the will annexed. These tonds and 
stock certificates came to the hands of Mr. House 
as assets to be administered. There being no oc- 
casion to use them in payment of debts, and no 
specific bequest having been made of either bonds 
or stock, the administrator distributed them among 
the legatees — the shares of stock by an assignment 
of the certificates to the "heirs and distributees 
of J. W. Baugh, deceased." No particular num- 
ber of shares were directed to be assigned to the 
several distributees, nor were the persons desig- 
nated who were "heirs and distributees;" but Mr. 
J. W. Baugh, a son and distributee, was, in the 
usual form, constituted his attorney in fact to 
make and execute all necessary acts of assign- 
ment and transfer to carry out the purpose. Un- 
der this power and assignment, the company trans- 
ferred two hundred and fifty-one shares to Fanny 
F.. Baugh, the complainant, who was then a minor 
and unmarried. This certificate was, in form, an 
assignment and transfer out and out of the whole 
title to these shares, it nowhere being recited in 
the certificate that her interest was but a life es- 
tate. 

Shortly after this transfer, Mrs. C. H. Baugh, 

widow of the testator and mother of Fanny, was 
15— 7 p 



226 KASHVILLE : 



Smith V, Railroad. 



appointed by the County Court trustee for her 
daughters Fanny and Cicily, to the latter of whom 
a similar bequest had been made, subject to same 
limitations. She qualified by giving bond in the 
sum of seventy thousand dollars, and received into 
her possession the bonds and stock certificates 
which had been assigned to her cestui que trust 
by the administrator. 

In May, 1877, complainant, Fanny, was married 
to the defendant, B. B. Smith, and in December, 
1877, Mrs, Baugh's resignation as trustee for Mrs. 
Smith was accepted, and Mr. Smith appointed in 
her room and place, he entering into bond iri the 
sum of fifteen thousand dollars, with three sure- 
ties. Thereupon the bonds and stock held for 
Mrs. Smith were turned over to her husband as 
her trustee. 

In February, 1879, B. B. Smith and wife jointly 
assigned the certificate standing in her name, by 
filling out the blank assignment to G-. M. liizon, 
and constituted him their attorney in fact to as- 
sign same on transfer books of the corporation. 

May 17, 1879, this assignment to Rizon was 
duly acknowledged before a Clerk of a County 
Court, Mrs. Smith being privily examined. 

On the same day this certificate was sold and 
assigned to Clark, Dodge & Co., Rizon executing 
an assignment on the original certificate. This 
sale was made by, and the money paid to, Mr. 
Smith. 

Afterward Clark, Dodge & Co. assigned the 



DECEMBER TERM, 1891. 227 

Smith V. Railroad. 

same certificate to Victor Newcomb, and on De- 
cember 15, 1879, it was sent to the secretary of 
the defendant corporation, and the shares trans- 
ferred from the name of Fanny Baugh to that of 
the purchaser, a new certificate being issued. 

The railroad bonds held by Smith were, about 
the time of the sale of the stock, sold to the de- 
fendant, Samuel Seay. The bonds and shares were 
sold for their full market value at the tinie. The 
proceeds were by the trustee misapplied, and, as 
charged by the bill and admitted in his deposi- 
tion, "squandered in drinking, gambling, and other 
dissipations." 

As to the bonds, the bill charges that the pur- 
chaser knew that the seller, Mr. Smith, held them 
as a trustee, and was therefore bound to inquire 
as to his power to make sale; that, in fact, they 
were bought for the company issuing them, or for 
Mr. G. W. Seay, its secretary and treasurer, who, 
it is charged, knew, or ought to have known, of 
the trust under which they were held. 

A decree is sought against all the persons sug- 
gested as interested in the purchase or aiding in 
making the sale. The Chancellor dismissed the 
bill so far as any relief was sought on account of 
the sale of these bonds. In this part of his de- 
cree we most fully concur. The evidence that 
they were purchased by Mr. Samuel Seay in good 
faith, and in absolute ignorance that Mr. Smith 
held* them in trust, is entirely satisfactory. We 
are also satisfied that neither G. W. Seay nor the 



228 NASHVILLE : 



Smith V. Railroad. 



railroad company were in any way concerned in 
their purchase or sale. It is simply a case of 
negotiable securities, in no way ear-marked, sold 
on open market by a trustee entitled to their pos- 
session to innocent purchasers for full value, who 
neither had knowledge of the fact that the seller 
^as a trustee or of any purposed breach of a 
trust. 

Are complainants entitled to any relief against 
any of the defendants on account of either the 
sale or transfer of the stock certificate? The 
assignment to Rizon seems to have been a sham, 
and intended to aid in the proposed sale of the 
shares. Rizon was Smith's brother-in-law. He 
was present at the sale to one McCrory, and 
himself executed an assignment to Clark, Dodge 
& Co., for whom, it would seem, McCrory was 
acting. Rizon at once received a part of the pro- 
ceeds. He is not sued ; neither are the sureties 
on Smith's bond as trustee. The bill undertakes 
to excuse this by alleging the sureties to be in- 
solvent. They are the father and brothers of the 
defaulting trustee, and this is more probably the 
reason for omitting them. Clark, Dodge & Co. 
are not sued. Victor Newcomb, in whose name 
the shares now appear to stand, was named as a 
non-resident defendant in the caption of the bill. 
No publication seems to have been made, and no 
attachment was sought against the shares which, 
from this record, seem to still stand in his name. 
Mr. Newcomb did not answer, and, not being 



DECEMBER TERM, 1891. 229 

Ill 



Smith t/. Railroad. 



before the Court, his attitude as a purchaser be- 
comes unimportant, except so far as it shall affect 
the liability of the corporation for transferring this 
stock to him. The Chancellor was of opinion that 
the railway company was guilty of negligence in 
making or, allowing this transfer, and decreed ac- 
cordingly.- From this part of the decree it has 
appealed. 

Complainants have sought to support this decree 
upon several independent grounds. 

First. — That the act of the corporation was 
negligent in issuing a certificate, in 1873, to Fanny 
Baugh without showing on its face the trusts and 
limitations under which she held the title, and 
that this neglect led to the subsequent loss of the 
stock to an innocent purchaser without notice. 

We are of opinion that, upon the facts of this 
case, the corporation is not now liable to an action 
on this ground. It had no knowledge that there 
was a will limiting the title of Fanny Baugh to 
this stock, and there were no circumstances con- 
nected with the transfer by Mr. House, as admin- 
istrator, calculated to put it upon inquiry as to 
the existence or terms of a will. Lie assigned 
the certificate standing in the name of his dece- 
dent simply as administrator. If he had assigned 
as administrator cum testameiito annexOj it would 
have been notice of a will; but such a signature 
would have been singular, though technically exact. 
The assignment was to the "/ieirs and distributees^'^ 
not legatees^ of J. W. Baugh. There was, there- 



230 NASHVILLE : 



Smith Z'. Railroad. 



fore, nothing about the transfer calculated to in- 
dicate a will. In this respect the case is to be 
distinguished from Covington v. Anderson^ 16 Lea,* 
310, and Caulkins v. Gas Company, 85 Tenn., 683. 
The fact that stock is assigned by one other than 
the person to whom it was issued devolves upon 
a corporation, when called upon to transfer the 
shares and issue a new certificate, the duty of 
inquiry as to the power of the assignor to make 
the assignment. Here it made no inquiry. It 
assumed, therefore, the risk as to Mr. House's 
power to dispose of this stock. In assuming that 
he had the power it assumed no other risk, there 
being no circumstances calculated to excite the 
suspicions of a prudent man that a breach of 
trust was contemplated. Cook on Stock and 
Stockholders, Sec. 326. 

The power of Mr. House under the will to 
dispose of this stock cannot be doubted. He had 
a right to sell, or distribute in kind to the legatees 
if not needed for payment of debts. It had not 
been specifically devised. "The one-fifth in value" 
of testator's personal estate given to his daughter, 
Fanny, might have been paid to her in money, 
bonds, or stocks, the beneficiary consenting'. His as- 
signment of these shares to her on account of her 
bequest was within his power. That he assigned 
the title absolutely was not breach of his trust. She 
took the title under the will and subject to the 
limitations of the will, and became herself charged 
with a trust in favor of the remainder-men. 



DECEMBER TERM, 1891. 231 

Smith V, Railroad. 

It might be conceded that he ought to have 
indicated on the certificate the limitations on her 
title. But it was not a breach of trust if he 
failed to do so. The corporation, who had no 
knowledge of the will, were certainly not in fault 
in registering the transfer as he had made it. 
Subsequently a trustee was appointed for the pur- 
pose of holding the estate of Fanny and preserv- 
ing the trusts of the will. This certificate went 
into the hands of this trustee. While thus held 
it was in no danger of passing into the hands of 
an innocent purchaser without the joint concurrence 
of the trustee and life tenant in a breach of trust. 
The negligence of administrator or corporation in 
not ear-marking this stock was obviated when it 
reached the hands of a trustee charged with the 
duty of preserving the trusts of the will. The 
subsequent loss was the direct consequence of sub- 
sequent and independent acts of negligence and 
breaches of trust. This loss was not the proxi- 
mate consequence of the remote acts of negligence 
now complained of. 

We come now to consider the ground upon 
which the Chancellor seems to have rested his 
decree, viz., that the corporation was guilty of 
negligence in permitting the transfer of this stock 
to Victor Newcomb. 

The contention of complainant is that the com- 
pany had constructive notice of the fact that this 
stock was held bv Mr. Smith as trustee, and that 
as trustee he had no power of sale, and that 



232 NASHVILLE : 



Smith V. Railroad. 



therefore it should have refused to transfer the 
shares to his assignee. The facts upon which the 
corporation is sought to be charged with notice 
are these : 

After the appointment of Mrs. Baugh as trustee 
she executed receipts for a number of dividends. 
Some of these receipts were signed by her as guard- 
ian, others as guardian trustee, and others as 
trustee. After Mr. Smith's appointment he was 
directed by the secretary of the company to re- 
ceipt as trustee. 

The secretary, who paid them dividends and 
took their receipts, says that he suppoised from 
Mrs. Baugh's receipts that she was guardian; 
that in point of fact he had no information of 
her being a trustee, or that Mr. Smith was her 
successor; that he required the latter to receipt 
as trustee because the stock stood in the name of 
a married woman, and that he used the term 
trustee as synonymous with agent. 

The evidence of knowledge of a trust is un- 
satisfactory. But waiving this, and waiving the 
question as to the power of the trustee to sell, 
we shall rest our decision upon another question. 

If a corporation transfer shares upon a forged 
assignment and power of attorney, or upon the 
authority of one wrongly assuming to be the agent 
of the owner, or upon a void decree or judgment, 
its act would be a nullity, in so far as it was 
thereby sought to affect the rights or status of 
the true owner as a share-holder. Such owner 



DECEMBER TERM, 1891. 233 

Smith V, Railroad. 

would remain a share-holder regardless of the 
illegal cancellation of the evidence of his right, 
and notwithstanding the issuance of a new certifi- 
cate to the transferee in place of that canceled. 
His right would be no more affected by the tak- 
ing up of his certificate without valid authority 
than it would be by its accidental destruction. 
A Court of Equity would compel -the corporation, 
in either case, to recognize him as a share-holder 
by the issuance of a new certificate, and compel 
an accounting for dividends wrongly paid over to 
the transferee. Telegraph Company v. Davenport^ 
97 U. S., 369; St. Bomes v. Cotton-press Company^ 
127 U. S., 614; Dewing v. Perdicases, 96 U. S., 
193; Pollock v. Banky 7 K Y., 274; Doing v. 
Salisbury Mills, 125 Mass., 138; Brown v. Howard 
Fire Insurance Company, 42 Md., 384; Hambleton 
V. Central Bailroad Company, 44 Md., 551. 

But where the assignment of shares is made by 
the person appearing on its books to be the abso- 
lute owner, but the assignment was in breach of 
trust, then the liability of the corporation to the 
cestui que trust for transferring such shares depends 
not only upon its being shown that the corpora- 
tion had either actual or constructive notice of the 
breach of trust, but upon its further appearing 
that its act in recognizing' the assignment and 
making the transfer operated to aid the breach of 
trust and contributed directly to the loss of the 
stock by the cestui que trust. 

If it be assumed that the facts known to the 



234 



NASHVILLE : 



Smith V, Railroad. 



corporation at the time of its transfer of these 
shares to Newcomb were sufficient to put it upon 
inquiry as to the terms upon which this stock was 
held, and as to the power of the assignees to 
make sale^ and the purposes of such sale, then it 
should be held justly liable for the injurious con^ 
sequences to the cestui que trust of its act, under 
such circumstances, in making the transfer to the 
purchaser. But if its transfer to him did not 
aftect the rights and interests of the cestui que 
trust, by reason of the fact that the purchaser had 
acquired a good and indefeasible title before such 
transfer, then it would not be just to hold that 
it had aided in a breach of trust already consum- 
mated, or contributed to a loss already irremediable* 
The rule on this subject has been well stated 
by Mr. Lowell in his recent and most valuable 
work upon Transfer of Stocks. "The liability of 
the corporation," says Mr. Lowell at Section 153, 
" for recording of transfers made in breach of trust 
depends very much upon the position of the pur- 
chaser. If he has acquired, before transfer on the 
books, a perfect title to the stock, free from all 
claims on the part of the cestui que trust, the 
breach of trust is complete before the corporation 
is asked to transfer, and when it records the 
transfer the corporation is merely doing what it is 
bound to do, and is not helping the trustee to 
commit the breach of trust. The corporation can 
therefore incur no liability to the cestui que trust 
by recording a transfer to a bona fide purchaser 



DECEMBER TERM, 1891. 285 

Smith V. Railroad. 

for value, unless there is a regulatiou making the 
stock transferable only on the books, and unless 
that regulation can be so construed that the act 
of the corporation is necessary to pass the title." 
To same effect see Sections 99, 100, 138, 149, 150. 

The negligence of the corporation in permitting 
the transfer must be the efficient and proximate 
cause of the loss sustained by the cestui que trust. 
If the purchaser's title was complete without the 
transfer, then it cannot be the efficient proximate 
cause of the loss. Such a purchaser could compel 
a transfer to himself, and it would be the gravest 
injustice to hold the corporation responsible when 
its refusal would subject it to liability to the pur- 
chaser and" in no way improve the case of the 
cestui que trust. 

Let us apply this principle to the facts in this 
case. This stock stood in the name of Fanny 
Baugh. The certificate was issued to her. She 
joined her husband in assigning it to her brother- 
in-law, G. M. Rizon.' This assignment and power 
of attorney to Rizon they acknowledged before the 
Clerk of the County Court. Mrs. Smith says she 
consented to a sale, and assigned the shares to 
enable her husband to make a sale, because he 
promised to invest the proceeds in other property. 
The transfer to Rizon, as before stated, was prob- 
ably for the purpose of better enabling Smith to 
bring about a sale. Three months after date of 
this assignment. Smith and Rizon together made a 
sale to Clark, Dodge & Co., for cash, for full 



236 NASHVILLE : 



Smith V. Railroad. 



market value. Subsequently they assigned the 
shares to N. Victor Newcomb. The latter, nearly 
ten months after date of Mrs. Smith's assignment 
to Rizou, sent the original certificate, with the 
assignments of Smith and wife to Rizon and Rizou 
to Clark, Dodge & Co. and Clark, Dodge & Co. 
to himself, to the secretary of the railroad com- 
pany, and demanded a transfer on the books to 
himself. Under the facts shown in this record, 
there can be no doubt but that Clark, Dodge k 
Co., under whom Newcomb claims, were innocent 
purchasers, without notice of any limitations upon 
the title of Mrs. Smith, or of the fact that .Smith 
himself held the shares as a trustee. As New- 
comb obtained their title, it becomes unimportant 
to inquire as to whether he purchased from them 
with or without notice of complainant's rights, or 
whether they in fact bought only as his agents. 
Is such a purchaser protected against the claim 
of the defrauded ctstxii que trust? There can at 
this day be no serious doubt but that an innocent 
purchaser of shares for value from the apparent 
owner obtains an indefeasible title, and is un- 
affected by a secret defect in the seller's title. If 
the shares had stood in the name of Smith as 
trustee, this, under the weight of authority, would 
have put him upon inquiry as to the power of 
the trustee to sell. But here these shares were 
not so registered, and there was no notice in fact 
of a trust. Such a purchaser is protected against 
the claims of cestui que trust. While shares are 



DECEMBER TERM, 1891. 237 

Smith V, Railroad. 

universally held to be non-negotiable in the sense 
of the law merchant, yet, as a species of property 
sui generis^ they are something more than mere 
assignable choses. They have been called, for want 
of a better term, quasi negotiable securities. Mr. 
Justice Davis, in Bank v. Lanier^ said of this 
species of property that " stock certificates of all 
kinds have been constructed in a way to invite 
the confidence of business men, so that they have 
become the basis of commercial transactions in all 
the large cities of the country, arid are sold in 
open market the same as other securities. Al- 
though neither in form or character negotiable 
paper, they approximate to it as nearly as possi- 
ble." 11 Wall., 377. 

The observation of Judge Freeman in Cornick 
V. Richards^ 3 Lea, 1, that the purchaser of shares 
assigned in blank by the owner "must take sub- 
ject to previous equities as any other assignee 
standing in the shoes of his assignor" was unnec- 
essary to the decision; and in the subsequent case 
of Cherry v. Frost, 7 Lea, 1, the Court unani- 
mously declared it to have been an inadvertent 
statement. The undoubted rule in this country is 
that a purchaser of shares from the apparent 
owner obtains a good title, notwithstanding such 
apparent owner may have been in fact a trustee 
and guilty of a breach of trust in making the 
sale. Cook on Stocks and Stockholders, Sees. 325 
and 434. In Cherry v. Frost, supra, it was held 
that where a pledgee of stock assigned in blank 



238 NASHVILLE : 



Smith V, Railroad. 



by the owner as collateral security, subpledged the 
certificate for money loaned to him, in ignorance 
of the owner's equity, the latter was entitled to 
hold the stock, as against the owner, to the extent 
of the consideration. In the later case of Caulkins 
V. Gas Company^ 85 Tenn., 684, a purchaser of 
shares affected with a trust in the hands of the 
holder, he being but a life tenant, was protected 
against the remainder-men, the purchaser having 
bought for value and in ignorance of the defect 
in the title of the apparent owner. In Hadley v. 
Kendrick, 10 Lea, 525, the purchaser of gas stock 
from an ^executor who sold in breach of his trust, 
the stock having been specifically bequeathed to 
one for life with remainder over to others, was 

. protected. 

The title of the purchaser upon the assignment 
of the certificate was complete without registration 
or transfer on the stock books of the corporation. 
The rule requiring transfer on the books of the 
company, by the well-settled line of decisions in 
this State and by the great weight of authority 
in the Courts of America, is a rule made solely 

•for the benefit of the company. By it the com- 
pany is enabled to know who are entitled to vote 
and to whom it may pay dividends. A complete 
equitable and legal title passed by the act of the 
owner in assigning the certificate, and the subse- 
quent registration of this assignment and issuance 
of a new certificate in no way affected the rights 
of the cestui que trust. The breach of trust was 



DECEMBER TERM, 1891. 239 

— • - __ 

Smith V, Railroad. 

complete before the corpora1;iou was called upon 
to transfer the shares, and it had no right to 
Infuse a transfer. Cornick v. Richards^ 3 Lea, 1 ; 
Cherry v. Frosty 7 Lea, 1 ; Bank v. Farrington, 13 
Lea, 333; Bank v. Planing Mill Co.j 86 Tenn., 
252; Caulkins v. Gas Co., 85 Tenn., 683; Lowell 
on Transfer of Stocks, Sees. 93, 103, 95, 96, 153; 
Cook on Stocks, Sec. 381. 

That Mrs. Smith was a minor at the time of 
the sale and at date of transfer on the company's 
hooks, cannot affect the question of the company's 
liability for making the transfer. The transfer of 
shares by a minor is . voidable, not void. It is 
one of those acts which may or may not be to 
the interest of the minor.. To say that every sale 
of shares by a minor was void would be disas- 
trous to them in most cases. It is like the sale 
of lands or any other sort of property by a minor. 
If the act on its face is not such an one as is 
manifestly, injurious to the minor, it will be held 
voidable merely at the election of the minor. 
This is the rule in this State- concerning sales and 
conveyances by minors. Wheaton v. Fast, 5 Yer., 
61; McGan v. Marshall, 7 Hum., 125; Barker v. 
Wilso7i, 4 Heis., 269. The same rule has been 
applied to the purchase and sale of stocks by 
minors. Lumsden's Case, the Law Reports, Chan- 
cery Appeal Cases, Vol. IV., 31; Cook on Stocks, 
Sees. 318 and 427; 10 Am. and Eng. Ency. of 
Law, Vol. X., e35. 

The sale being only voidable at the election of 



240 NASHVILLE : 



Smith V. Railroad. 



the minor, the corporation had no right to refuse 
a transfer, it not having been avoided at date of 
transfer. Mr. Lowell, on Transfer of Stocks, at 
Section 138, says: "It is, however, of no consequence 
that the title of the purchaser is voidable, if it has 
not in fact been avoided, because by the definition 
of the term voidable the title of the purchaser in 
such a case is valid until avoided." 

The decree of the Chancellor must be reversed 
as respects the Nashville & Decatur Railroad Com- 
pany. Complainants will pay all the costs of the 
causes. 



DECEMBER TERM, 1891. 241 



Spurlock V, Brown. 



Spurlock v.' Brown. 
{Nashville. February 27, 1892.) 

1. Written Instruments. Knowledge of contents by maker. Presump- 

turn. Estoppel. 

The presumption obtains that the maker of a written instrument, who 
had capacity and opportunity to examine and understand it before 
signing, was acquainted with its contents. This presumption becomes 
conclusive, and estops the maker to show the contrary, where he stated 
at time of signing that he had read the instrument, and this admission 
was acted upon by others in matters affecting their rights. {^Post, pp. 
247, 248.) 

Cases cited and approved : Miller v. Denmon, 8 Yer., 237 ; Rice v. Bank, 
7 Hum., 41 ; Gardner v. Stanfield, 12 Heis., 150; Frazier v. Bassett, 
I Overton, 299. 

2. Witness. Corroboration of by his confirmatory statements not allo^ved, 

when, 

A witness, the maker of a written instrument, testified that he did not 
read the paper, and was not acquainted with its contents before sign 
ing it. He admitted that he stated to the other party and the sub- 
scribing witnesses at date of signing that he had read the paper, and 
this admission was proved by other witnesses. In corroboration of 
witness* testimony that he had not read the instrument before sign- 
ing, his confirmatory statements, made recently after the signing, but 
not part of the res gesta^ were offered in evidence. 
. Held: These confirmatory statements are incompetent. {Post, pp. 248- 

• Cases cited and distinguished: Hayes v, Cheatham, 6 Lea, 10; Glass v. 
Bennett, 89 Tenn., 479. 

3. Antenuptial Marriage-contract. Marriage alone sufficient con- 

sideration for. 

An antenuptial marriage-contract, obtained and entered into fairly and 
understandingly, whereby the wife, upon consideration of the mar- 
riage alone, agrees to relinquish all claim to the husband's property, 

16—7 p 



no 6^ 



242 NASHVILLE : 



Spurlock 7f. Brown. 



constitutes an absolute and effectual bar to her suit seeking to assert 
her rights as widow in her husband's estate. Marriage alone is a 
sufficient consideration for such relinquishment. In such case it is 
immaterial that the husband had a large estate, and that no dis- 
closure of this fact was made to the wife, and that no adequate pro- 
vision was made for her. {Post, pp, 2^4-2^8.) 

Cases cited and approved: 25 Md., 538; 86 Ky., 114; 116 Ind., 545; 
53 Vt., 54; 33 Kan., 460; 69 Me., 247; 95 N. C, 476. 



Same. Construction of. 

But such contract is based upon a pecuniary consideration, and not upon 
that of marriage alone, where, having been made after the parties 
became engaged, the husband, <* in consideration of the consummation 
of said marriage," conveyed certain property to the wife, and the 
wife, *'in consideration of the said conveyance," relinquished all 
interest in the husband's estate. And, in such case, the relations of 
the parties are confidential, and the wife will be relieved of her con- 
tract if she has acted in ignorance of her pecuniary rights superin- 
duced by the husband, although there may have been no intentional 
fraud. (/*«/, //. 2s8y 2jg,) 



5. Same. Case in judgment, 

S. and M., having engaged to marry each other, entered into an ante- 
nuptial marriage-contract, whereby S. gave M. a life-estate in a 
house and lot worth about $6,000, and M., in consideration thereof, 
relinquished all interest in S.'s estate. M. was forty years and S. 
sixty-three years of age. This contract was prepared by S.'s attor- 
ney, who undertook to explain it to M., who had no other adviser. 
S. had then and at his death an estate of about $100,000. M. had 
about $3,700 personal estate, which passed to S. by virtue of the 
marriage. No issue was expected and none came of this marriage. 
There was no actual fraud on the part of S. or his attorney, but M. 
was not informed that her $3,700 became the property of S. by virtue 
of the marriage, and was induced to believe by S.'s despondent views 
of his affairs that he had but a small estate. 

Held : M. is not bound by this contract. It is without adequate con. 
sideration, and entered into under mistake of both law and fact. 
{Post^ pp. 2 43-2 46 ^ 238-260.) 

Cases cited and approved: Drew 7-'. Clark, Cooke, 374; Warren v, Will- 
iamson, 8 Bax., 431; Trigg v. Read, 5 Hum., 533; Dalton v. Wolfe, 
II Heis., 502; Sparks v. White, 7 Hum., 87; 9 Hum., 82; 98 U. 
S., 91. 



DECEMBER TERM, 1891. 248 

Spurlock z: Brown. 

6. Same. Same, 

And this contract is not cured of its infirmity by the fact thAt S. subse- 
quently gave M. his note for the $3,700 he obtained of her by the 
marriage. i^Post^ p, 26^. ) 



FROM DAVIDSON. 



Appeal from Chancery Court of Davidson County. 
Andrbw Allison, Ch. 

Vbrtrees & Vbrtrbes for Spurlock. 

East k Fooo, Marks & Marks, and B. F. South 
for Brown. 

Dickinson, Sp. J. On January 4, 1884, com- 
plainant was married to S. B. Spurlock. On 
December 24, 1883, after the parties became en- 
gaged, a marriage-contract was executed by com- 
plainant, "who was then Margaret Mallon, and Spur- 
lock, by which he conveyed to her an estate for 
life in a house and lot, and she agreed as follows: 

"And I, the said Margaret Mallon, contract and 
agree with the said S. B. Spurlock, in consideration 
of the above conveyance, upon the consummation 
of said marriage, to accept the above as my portion 
of his property, either real, personal, or mixed, 
moneys, choses in action, or accounts, and I do 
hereby relinquish all my rights of dower or home- 



244 KASHVILLE : 



Spurlock 7). Brown. 



stead in any real estate said Spurlock now has, or 
may have; and in case said Spurlock should die 
before I do, I hereby relinquish all and every in- 
terest in his estate I may or would be entitled to 
in consequence of said marriage." 

Complainant had been in business, and had ac- 
cumulated about $3,700, which, at the time this 
contract was made, and at the time of her mar- 
riage, was loaned to Spurlock. Nothing was said 
by the contracting parties in regard to this money, 
nor of the effect of the marriage upon it. On 
March 13, 1890, about a year before his death, he 
executed and gave to her his note for this money, 
with some interest, aggregating $3,735.50, condi- 
tioned that it should not bear interest during his 
life. Spurlock died January 23, 1891, leaving no 
descendants. Respondents are his next of kin. 
His estate at his death was worth, net, about 
$100,000. If there were no marriage-contract, com- 
plainant, as sole distributee, and for dower, would 
succeed to an estate worth about $50,000. 

Sh^ filed her bill setting up these rights. In 
it she discloses the marriage-contract and attacks 
its validity as a bar to her claims. The answer 
specifically denies every material allegation of the 
bill, and controverts every proposition of law re- 
lied on by complainant. It avers that she ex- 
ecuted the contract freely, understandingly, and for 
a sufficient consideration. It relies upon the con- 
ti-act as an equitable bar to complainant's legal 
rights in Spurlock's estate. 



DECEMBER TERM, 1891. 245 

Spurlock V, Brown. 

At the time of the marriage complainant was 
about forty years of age. She was a divorced 
woman, and her husband was then living. She 
had two children by this husband, but both had 
died. Her life had been a severe struggle. She 
married in Ireland at sixteen, and soon thereafter, 
being deserted by her husband, went by a sailing 
vessel to Australia, where she supported herself 
for six years as a domestic servant. She returned 
to Ireland, and then, a reconciliation having taken 
place, joined her husband in Nashville. She pro- 
cured a divorce from him on the ground of his 
cruelty. She entered in the grocery business, 
catering to those in the lowly walks of life. She 
was industrious, thrifty, smart, and economical, and 
in addition to supporting herself, she gradually 
accumulated from the business which she con- 
ducted. The re.cord shows that she was a quiet, 
unobtrusive woman, and that her reputation was 
good. 

Spurlock, at the time of the marriage, was 
about sixty-three. Early misfortune had perma- 
nently impaired his health and caused him to 
withdraw from social life. He was a wholesale 
grocery merchant, and Mrs. Mai Ion was his cus- 
tomer. He knew her for years before her mar- 
riage, was familiar with her surroundings, and was 
her business adviser. It is in proof that he did 
not expect any children from the union. At the 
time the contract was made he was largely in 
debt, but his estate then was worth, net, fully as 



246 NASHVILLE : 



Spurlock V. Brown. 



much as it was at his death. There is an effort 
to show that complainant contrived the marriage, 
but the proof does not sustain it. His letters, 
written to her two years before the marriage, 
plainly manifest a deep and tender interest in her, 
and he was a regular visitor for some months 
before the marriage. Her origin and antecedents 
were humble, but she, so far as this record shows, 
had achieved a competency for herself by her own 
efforts, and had maintained a reputable character. 
His antecedents and family position were good, but, 
constrained by a misfortune, he had banished him- 
self from the social orbit in which he might have 
moved. His life was lonely, his health impaired, 
and he was approaching inevitable decrepitude. 
Leaving out all consideration of pecuniary benefits, 
there certainly was no advantage in his status over 
hers — nothing to make marriage a condescension 
on his part. Their marriage appears to have been 
happy, and the proof shows that she was a thrifty 
and attentive wife, who nursed him tenderly in 
his long and painful sickness. 

Complainant avers that she was induced to sign 
the instrument by Spurlock, who represented to her 
that it was meant only to save her the annoyance 
of going to the court-house to acknowledge deeds 
to his property, and that it did not cut her off 
nor affect her rights as wife. This direct charge 
of unmitigated fraud is in strange contrast with 
her repeated assertions in her testimony that Spur- 
lock was a most honorable man, who never did 
lie nor wrong any one. 



DECEMBER TERM, 1891. 247 

Spurlock V. Brown. 

The coatract was written, at the request of 
Spurlock, by G. J. Stubblefield, who then was a 
lawyer at Nashville. He testifies that he went, 
at Spurloek's instance, to read and explain it to 
Mrs. Mallon, and that he did so and left it with 
her after Spurlock had introduced him and retired. 
She denies that there was any such interview. 
The law would presume that she knew the con- 
tents of the paper she executed, it appearing that 
she was not illiterate. She admits that, on the 
day the contract was signed, it was in her posses- 
sion about twenty -five minutes while Spurlock went 
to get G. J. Stubblefield and Hiram Stubblefield to 
witness it, and that she told them when they came 
that she had read the paper and would sign it. 
The paper is so plain and simple that any person 
of ordinary intelligence could understand that it 
cut off all her rights as wife in Spurlock's prop- 
erty. Complainant was a person of more than 
ordinary intelligence, and for years had successfully 
engaged in business. These two subscribing wit- 
nesses testify that she said before she executed it 
that she had read it and understood it. She ad- 
mits that she told them that she had read it. 
She now says that she did not in fact read it, 
and that she did not know its contents. 

An admission, though not conclusive against the 
party making it (12 Heis., 150; 7 Hum., 41), is, 
when made freely and without any qualification, the 
highest evidence. Miller v. Denman^ 8 Yer., 237. 
To overcome it, the proof must be full and 



248 NASHVILLE 



Spuriock r. Brown. 



unquestionable. Bice v. Bank, 7 Hum., 41. Like 
other parol evidence, it is subject to be weighed 
with other proof, and may be controlled; but it is 
obligatory if others, in conforming their actions to 
it, acquire rights with the knowledge of the per- 
son making it. 1 Overton, 299. This rule be- 
comes more binding when the admission is solemn, 
and is made the foundation for the execution of 
a written contract. 

To corroborate complainant, two witnesses testify 
that she told them, on the day the contract was 
made, that she had signed a paper for Spuriock 
without reading it. 

In Hayes v. Cheatham, 6 Lea, 10, the Court 
says: "The rule is that where it is attempted to 
be established that the statement of a witness on 
oath is a recent fabrication, or where it is sought 
to destroy the credit of a witness by proof of 
contradictory representations, evidence of his hav- 
ing given the same account of the matter at a 
time when no motive existed to misrepresent the 
facts ought to be received, because it naturally 
tends to inspire confidence in the sworn statement." 
This rule was approved in Glass v. Bennett, 5 
Pickle, 479. It is sometimes a matter of nice 
judgment to determine that no motive, at a given 
time, existed to misrepresent the facts. It could 
not be assumed in this case that no such motive 
existed at the time these declarations were made, 
for if the testimony of G. J. Stubblefield that he 
had read and explained the contract to her be 



DECEMBER TERM, 1891. 249 



Spurlock z\ Brown. 



true, then these statements could have been made 
with no motive except to misrepresent facts and 
lay the foundation for just such a contest as this. 
But this testimony does not come within the rule, 
and for a more conclusive reason. No effort was 
made to discredit her testimony as to what oc- 
curred when the contract was executed, and no 
corroboration on this point was needed. The at- 
tempt is on her part to show that she made con- 
flicting statements, and to have those made after 
the transaction, and not as a part of the res gest(B^ 
override a solemn admission made by her before 
subscribing witnesses. There was no duress nor 
compulsion when she made this admission. To al- 
low it to be overridden by subsequent conflicting 
statements, would be to subvert the foundation 
upon which all solemn contracts rest. There is 
no rule under which such evidence would be com- 
petent. A number of witnesses testify to conver- 
sations had with her during her marriage, and be- 
fore any question of contest was mooted, which 
disclose that she knew of the marriage-contract 
and understood its efl:ect apon her marital rights 
in his estate. These witnesses are interested and 
prejudiced, but so is she. The weight of testi- 
mony is strongly against her, but, independent of 
it and of the evidence of Stubblefield that he 
read and explained the contract to her, we hold 
that her own testimony and that of the witnesses 
introduced to corroborate her, though unexcepted 
to, is insuflicieut to overcome her solemn acknowl- 



250 NASHVILLE : 



Spurlock V. Brown. 



edgment, freely made, that she had read the pa- 
per and understood it. 

To sustain complainant's declaration that she 
did not know and was misled as to the contents 
of the contract, and for the further purpose of 
showing that it is not binding because not within 
the contemplation of either contracting party, it is 
contended that Spurlock himself was ignorant of 
its real effect. It is argued that Stubblefield proves 
that the contract, as prepared by him, goes beyond 
the written memorandum given him by Spurlock 
as a basis of the instrument, and that this memo- 
randum did not cut oft' her marital rights; and 
further, that this fact, taken in connection with 
statements made by Spurlock to purchasers of 
realty from him, fully demonstrates that he did 
not understand that the agreement cut her off 
from his estate, thus confirming her testimony that 
he induced her to sign it by staling that it was 
a mere paper to save her from trouble and annoy- 
ance, and that it did not affect her rights as wife. 

It is true that Stubblefield states that the mem- 
orandum furnished by Spurlock only contained, so 
far as he could remember, a description of the 
bounds of the lot, a provision for a life estate in 
her, and a disposition of the remainder. He states 
further that he might not remember every thing. 
Ho says that Spurlock came to him to write a 
marriage-contract, and that he came back in some 
days, when witness read to him the contract he 
had prepared, it being the same one subsequently 



DECEMBER TERM, 1891. 251 

Spurlock V, Brown. 

executed, and that Spurlock said it was as they 
had agreed; that he then asked Spurlock what 
she would live on, and he replied that she was 
no pauper, and that she had between three and 
four thousand dollars in his hands, besides the 
house he was going to give her. This witness 
is disinterested and uncontradicted on this point, 
and his credibility is not assailed except as to 
memory, and that not successfully. 

The proof shows that Spurlock was a success- 
ful business man, who had dealt frequently in real 
estate. It is most improbable that a man of this 
character would have taken the precaution of hav- 
ing two witnesses go to her home to attest her 
signature to an instrument which was wholly for 
her benefit; and it is still more improbable that 
he did not know the contents of a paper exe- 
cuted by him on such an occasion and with such 
solemnity. 

One Williams testified that he bought a lot from 
Spurlock in 1889, and that, in response to his in- 
quiry as to the necessity for Mrs. Spurlock to sign 
the deed, Spurlock said: "No; that he had a mar- 
riage-contract with his wife, which he made 50 as 
to save her from having to sign deeds." This is 
but a report of a conversation, which is weak 
testimony at best. If he had said that Spurlock 
stated he had a marriage-contract with his wife, 
and that it was so made that she did not have 
to sign deeds, the testimony would not be signifi- 
cant, lie not only undertakes to state the effect. 



252 NASHVILLE : 



Spurlock V, Brown. 



which was all that was important so far as his 
affair was concerned, but to reproduce language 
so nicely framed as to express a purpose for which 
the marriage-contract was made. Such testimony 
should be received with great caution. This wit- 
ness reports Spurlock, in the same conversation, as 
making statements in regard to his provision for 
his wife which the record shows to be absolutely 
untrue. Besides, he was a reticent man about his 
private affairs, and it is most improbable that he 
would have been so free, on such an occasion, 
with his confidence. This witness is contradicted 
by Holman, to whom he claimed to have repeated 
Spurlock's statement. 

Another real estate purchaser testifies that Spur- 
lock said : " I have signed a paper of about $35,- 
000 to her; that she would not have to go all 
over the State and county signing of his deeds 
for such land as he might sell." This testimony 
is discredited by the statement that the paper gave 
her $35,000, which Spurlock could not have made 
without telling a conscious falsehood, and the ab- 
surdity of saying she would otherwise have to go 
all over the State to sign deeds. Independent of 
these ear-marks of invention, the language as re- 
ported does not conclusively declare the purpose 
for which the contract was made, but rather ex- 
presses the effect. 

This is all the evidence, besides her own testi- 
mony, going to show that Spurlock did not know 
the scope of the contract. It weighs for nothing 



DECEMBER TERM, 1891. 253 

Spurlock V. Brown. 

against the testimony of Stubblefield and the actual 
execution of the instrument. Besides, Hoke, who 
was his confidential clerk, testifies that Spurlock, 
on the day before his marriage, told him that he 
had entered into a marriage-contract that would 
secure his property to his relatives. Cooley, a dis- 
interested witness, says he told him after his mar- 
riage that he wanted his property to go to his 
sisters and their children. The fact of his giving 
her his note for the money he had borrowed of 
her, when he was very sick and after his arm hard 
been amputated, is a strong circumstance to show 
that he knew she was cut oflF from his estate; 
for otherwise it would have been entirely unneces- 
sary for her protection, inasmuch as she would 
have succeeded to all of his personalty if he 
died intestate. His knowledge that she would take 
nothing doubtless caused him to secure this money 
to her. 

The evidence shows to our entire satisfaction 
that both Spurlock and his wife executed the paper 
knowing it was a marriage-contract, and that it 
cut oflT her marital rights in his property. 

The proof clearly shows that all question of the 
money he had borrowed of her was, on making the 
contract, passed over sub silentio. 

She surrendered all prospective marital rights in 
his estate, then worth, net, $100,000, and received 
a life estate in realty which had cost him, two 
months prior to the marriage, but $5,000, and on 
which he had spent in improvements about $1,000. 



254 NASHVILLE : 



Spurlock V. Brown. 



She insists that a marriage-contract, being cog- 
nizable only in a Court of Equity, will not be 
enforced unless the provision made for her be fair, 
reasonable, just, and equitable. 

It is contended for defendants that marriage 
alone is a sufficient consideration to sustain any 
antenuptial agreement the parties may make re- 
specting present or future rights in the property 
of each other. 

The authorities are much in conflict. One class 
of cases view the interposition of the contract as 
merely an equitable bar, which is held conclusive 
provided it be entered into freely and understand- 
ingly. The other class treat the reliance on it as 
an invocation to the Court for its active inter- 
position to enforce it specifically; and inasmuch as 
specific performance is not an absolute right, but 
is always within the discretion of the Court, they 
proceed to apply to the contract the usual tests to 
determine whether, under all the circumstances, the 
agreement is fair, just, and equitable, and especially 
whether the consideration be adequate. The meth- 
ods of treating the contract w-ould not produce 
such conflicting conclusions were it not for the 
high estimate put by one line of authorities upon 
marriage as a consideration and its entire preter- 
mission by the opposing line, which seems to look 
only to the pecuniary features of the transaction. 

In Nalll V. Maurer^ 25 Md., 538, and Forwood 
V. Forwoody '86 Ky., 114, marriage alone is held 
to be a sufficient consideration to sustain an ante- 



DECEMBER TERM, 1891. 255 

Spurlopk V, Brown. 

nuptial settlement. In the latter case the Court 
says: "The consideration of marriage is not only 
regarded as sufficient to uphold an antenuptial con- 
tract, but the consideration may be regarded by 
the woman as of inestimable value to her — a value 
that would by far outweigh her property rights in 
the estate of her intended husband." 

The same rule*, though not necessarily involved 
in the decisions, and therefore not authoritatively 
adopted, is approved in the following cases: McNutt 
V. McNutt^ 116 Ind., 545; Mann v. Mann^ 53 Ver., 
54; Safer v. Hafer^ 83 Kan., 460; Wentworth v. 
Wentivorthj 69 Me., 247; Brooks v. Austin, 95 N. 
C, 476. The case of Peet v. Peet, 46 N. W. 
Kep., 1051, cited to sustain this view, is not in 
point, and by implication rests on the opposing 
doctrine. 

The following authorities hold that the contract 
to be enforced must secure a provision for the 
wife not unreasonably disproportionate to the means 
of the intended husband : 2 Scrib. Dow., 424 
(2d Ed.); Gould v. Womack, 2 Ala., 83; Woerner 
Am. Law Admn., 1, 264; Kline's Estate, 64 Penn. 
St., 122; Ruth Bierer's Appeal, 92 Penn. St., 265; 
Pierce v. Pierce, 71 N. Y., 154; Tarbell v. 2'arbell, 
10 Allen, 278; Shea's Appeal, 121 Penn. St., 302; 
Stetter v. Folder, 14 Ohio, 647; Smith's Appeal, 115 
Penn. St., 319; Neeley's Appeal, 124 Penn. St., 
406; Ludwig's Appeal, 101 Penn. St., 535. 

The common law cherished nothing more than 
the right of dower. The wife was dowable in one- 



256 NASHVILLE 



Spurlock V, i^rown. 



third of the lands seized and possessed by the 
husband during coverture. And yet this right could 
be effectually barred by a jointure in lieu of dower 
made before marriage with her consent, without re- 
gard to the adequacy or inadequacy of the provision. 
In this State her right of dower only attaches to 
the land owned by her husband at his death. He 
may (excepting homestead) sell Vithout her con- 
sent every foot of land and squander the proceeds, 
and defeat her dower absolutely. It is subject to 
every vicissitude of business venture, and is a 
most precarious expectancy. She may not survive 
him, and if she do, the period of her enjoyment 
may come when its value, measured by her pros- 
pect of life, may be reduced to a minimum. There 
is no standard by which a Court can, as of the 
time an antenuptial settlement is made, value such 
a future right. The- same infirmities and uncer- 
tainties, though in an increased ratio, apply to her 
expectancy as distributee of personalty, the addi- 
tional one of children to share being in most 
cases probable. If a Court shall take the value 
of his estate when the contract is made as a 
criterion, it will happen often that the provision 
assumed on this basis to be just will far exceed 
what she would havd gotten after a life's ship- 
wreck in the absence of a contract. On the other 
hand, the conditions may be reversed. The problem 
is to estimate what is a reasonable consideration 
for surrendering a future estate involved in so 
much doubt and hazard. The rule contended for 



DECEMBER TERM, 1891. 257 

Spurlock V. Brown. 

would be variable in its results, according to the 
ideas of different judges as to what provision 
would be reasonable. It is plain that under this 
rule no such settlement would in any sense have 
any sanctity as a contract. It could have no fixed 
character until the judges, before, whom it finally 
came, had decided whether it be reasonable. The 
fullest disclosures of property might be made, the 
advice of friends and lawyers be invoked, all 
solemnities of execution and acknowledgment be 
observed, and yet it would be a mere problem as 
to what would be reasonable projected into the 
future, to be decided perhaps by an unborn judge 
according to his peculiar notions, not .confined by 
definite rules, and formed at a different period of 
time under the influence of changed conditions of 
society. This rule leaves out of view entirely 
marriage as a consideration. 

Where a settlement made by the husband on 
the wife, without fraud on her part and in con- 
sideration of marriage, has been attacked by cred- 
itors, it has been uniformly sustained, and all the 
authorities concur in saying that marriage is the 
highest consideration for such a settlement. It is 
a sufficient consideration from the woman to en- 
able her to take all of her intended husband's estate 
from his creditors. In our opinion there is no 
sound reason why she may not, if of age and 
acting freely and understandingly, agree, in con- 
sideration of the marriage alone, to give up the 

pecuniary benefits that would come from it. The 
17—7 p 



258 NASHVILLE : 



Spurlock V. Brown. 



value of the marriage can be estimated by no 
one as well as herself; and if it be accepted by 
her freely, as an equivalent for monetary sacrifices, 
the Courts should not interfere after she has ob- 
tained the marriage she contracted for, no matter 
how great such- sacrifices may be, provided she 
was not misled. 

In this case the contract recites that a mar- 
riage is to be solemnized, and then proceeds as fol- 
lows: "I, S. B. Spurlock, in consideration of the 
consummation of said marriage, do hereby and herein 
give," etc. When the portion binding her is 
reached, it says: "And I, the said Margaret Mal- 
lon, contract and agree with the said S. B. Spur- 
lock, in consideration of the said conveyance," etc. 
Marriage is not made a consideration for her 
agreement. It need not be specifically mentioned 
as a consideration. Naill v. Maurer, 25 Md., 538. 
But here the terms of the instrument confine the 
consideration expressly to the conveyance made to 
her. Being so exactly limited in a contract drawn 
by his lawyer, it may well be held to have been 
entirely pecuniary. When this contract was made, 
the engagement to marry had been entered into. 
By the engagement she acquired a valuable right 
which, in case of a breach of contract, could have 
been enforced, and measured with reference to 
Spurlock's estate. She could have refused to sign 
the contract without impairing her right to have 
the marriage consummated or to enforce indem- 
nity for a refusal. 



DECEMBER TERM, 1891. 259 

Spurlock V. Brown. 

Spui'lock must have known that her marital 
rights, if not cut off, would in all probability be 
very valuable. Defendants prove that he took his 
own lawyer* to her to explain the instrument. 
The relations of the parties had become confiden- 
tial. • He voluntarily assumed the office of having 
her instructed in respect of the agreement, and 
introduced Mr. Stubblefield to her for that pur- 
pose. Mr. Stubblefield testifies that he said noth- 
ing to her in regard to the effect of the marriage 
upon her rights to her own money, either in the 
absence of a contract or under the contract pro- 
posed. He says that, in his opinion, the money, 
if repaid to her before marriage, would have 
remained her separate estate. If he entertained 
this erroneous idea, it is not reasonable to suppose 
that she knew that she was surrendering her 
money. It does not appear that the question of 
her money was in any way considered, althou^jli 
her rights in it were to be affected by the mar- 
riage. Stubblefield shows that he did not contem- 
plate it. It is evident from his testimony that he 
did not advise her as to the rights she had ac- 
quired by the engagement. She had a right to 
expect a fuller exposition of her legal status in 
respect of the purely money bargain she was 
making than she received. 

It is manifest that she was not put in a posi- 
tion to deal intelligently with her rights. The 
result justifies this conclusion. Spurlock, by tlie 
marriage, acquired the absolute right to the $3,700 



260 NASHVILLE : 



Spurlock V. Brown. 



he owed her. She gave up all her rights in his 
estate. She got a life estate in a house and lot 
which, with improvements, had just cost him about 
$6,000. She was forty years of age. The life 
estate could not have exceeded, if it equaled, in 
value the amount of money she surrendered by 
the marriage. She practically, then, under the 
marriage and the contract, got nothing, and so 
surrendered for nothing, and not in consideration 
of the marriage, a legal right acquired by the 
engagement, which Spurlock was bound to know- 
had great prospective value. 

This is not a case simply of ignorance or mis- 
take of law on her part. This, standing alone, 
cannot be relieved against. Other elements exist 
in the transaction. Those in whom she had con- 
fidence, upon whom she had a right to rely, pro- 
cured from her (though certainly, so fat as Stub- 
blefield is concerned, not with' wrong intent), for 
an expressed pecuniary consideration, a contract 
most detrimental to her; and, though voluntarily 
assuming to instruct her, they failed to advise her 
as to her legal rights and as to the real consid- 
eration she was getting under the combined eiFects 
of the contract and the marriage. 

Mr. Pomeroy thus states the rule : " If the mis- 
take of law is not pure and simple, but is induced 
or accompanied by other special facts giving rise 
to an independent equity on behalf of the mistaken 
person, such as inequitable conduct of the other party, 
there can be no doubt that a Court of Equity 



DECEMBER TERM, 1891. 261 

Spurlock V, Brown. 

will interpose its aid." Equity Jurisprudence, Sec. 
842. 

A mistake in law, produced by the representa- 
tions of the other party, is as good a ground for 
relief in equity as a mistake in fact. Drew v. 
Clark^ Cooke, 374. If a party, acting in ignorance 
of a plain principle of law, give up an indisput- 
able right under the name of a compromise, equity 
will relieve from the eflect of such mistake where, 
accompanying it, there is ignorance, weakness, or 
viisplaced confidence upon the one side, or an un- 
conscionable advantage is obtained. Warren v, 
Williamson, 8 Bax., 431 ; Trigg v. Head, 5 Hum., 
533, A widow, ignorant of her legal rights, yielded 
to an administrator property which was exempt. 
This Court, through Chief Justice Nicholson, held 
that she acted in ignbrance of her own rights 
under the law as widow, and that it was the ad- 
ministrator's duty to communicate to her what her 
rights were. Dalton v. Wolfe, 11 Heis., 502. A 
mere naked ignorance of the law will not be suf- 
ficient to authorize a Court of Chancery to set 
aside a contract, but if that ignorance be superin- 
duced by the other party, or if there be misplaced 
confidence, or if advantage be taken of the weak- 
ness of intellect so as to obtain property at a 
greatly inadequate price, these and other influences 
mixed • with ignorance of law will be sufficient. 
Sparks V. White, 7 Hum., 87. 

In Wheeler v. Smith the Supreme Court of the 
United States set aside a release from an heir at 



262 NASHVILLE : 



Spurlock z'. Brown. 



law to executors, made for an inadequate consid- 
eration under a mistake of law and some undue 
influence. The heir was influenced by the honest, 
though erroneous, opinion of one of the executors, 
who was a lawyer in whom he had confidence. 
He, however, had no interest in the result. The 
Court said: "The complainant, it seems, had studied 
law, but it is manifest from the facts before us 
that he was but little acquainted with business, 
was an inefficient and dependent man, easily mis- 
led, especially by those for whose, abilities and 
characters he entertained a profound respect. * * 
But in making the compromise the parties did not 
stand on equal ground. * * * He did not 
act freely and with a proper understanding of his 
rights." 9 How., 82. 

The Court reformed a contract made in mistake 
of law through a reliance upon the representation, 
honestly made by the company's agent, that the 
insurance in the form adopted would give the pro- 
tection sought. The party relied upon the larger 
experience and greater knowledge of the agent. 
The Court says: "In deciding, therefore, as we do, 
that the complainants are entitled to have the 
policy reformed in accordance with the original 
agreement, it is not perceived that we enlarge or 
depart in any just sense from the general and 
salutary rule that a mere mistake of law, stripped 
of all other circumstances, constitutes no ground 
for the reformation of written contracts." Snell v. 
Insurance Co., 98 U. S., 91. 



DECEMBER TERM, 1891. 263 

Spurlock V. Brown. 

Mr. Laweon thus states the doctrine: "But the 
common law rule, which refuses relief against ig- 
norance or mistake of law, and which is equally 
applicable in Courts of Law and Equity, is not 
enforced in equity where such ignorance or mis- 
take is induced by fraud or imposition, 'or undue 
influence, or an abuse of confidencey springing out of 
the peculiar relations existing between the parties." 
Rights and Remedies, Sec. 2341. 

Complainant was not dealing at arm's length . 
nor under the advice of her own counsel. Assum- 
ing to instruct, they should have done so fully, 
and she had a right to presume that such was 
the case. A failure «to so advise, where such close 
corrfidence is reposed, whether purposely or through 
ignorance or misapprehension, is equivalent to posi- 
tive misadvice. 

There is another important fact which has great • 
weight, and must be considered as one of the 
controlling elements in the transaction. She testi- 
fies that Spurlock told her that he was heavily in 
debt, and made the impression on her that he was 
not worth much. Other witnesses testify that he 
frequently spoke of being oppressed by his large 
indebtedness, and thus she is corroborated. Thus 
the impression produced by him was calculated to 
influence her to yield, as of little value and for 
an inadequate consideration what, upon full infor- 
mation, would have been apparently of great value. 
If the contract was freely entered into in consid- 
eration of marriage, the disproportion between the 



264 NASHVILLE : 



Spurlock V. Brown. 



estate and the settlement is no ground for presam- 
ing that proper information in regard to the value 
of the husband's estate was not possessed. In such 
a case there is no necessity for a disclosure. The 
case is different where the contract relates in terms 
to a money bargain, and it affirmatively appears 
that misleading impressions were made, and that 
the opposite party in interest, who undertook to 
advise her of her rights and upon whom she, 
from the confidential relations existing between 
them, relied, failed to give her such instructions as 
would fairly put her in a position to judge of the 
rights which she was yielding; and when these facts 
concur, and the contract made is greatly to her 
disadvantage, a Court of Equity will not give it 
effect. That she may have entered into the con- 
tract, even with a full understanding, is not the 
question. The Court cannot speculate about this. 
We hold that, under the facts stated, it was not 
fairly obtained, and therefore we cannpt sustain it 
as an equitable bar to her . rights. It can make 
no difference that Spurlock subsequently gave her 
his note for this money. This was, in law, noth- 
ing but a gratuity. The money became his abso- 
lutely by the marriage, no matter what he may 
have thought about it. It was in no way secured 
to her, and was liable for his debts. He had it 
entirely in his power to dispose of it in any way 
he might choose. He could not, by giving it to 
her subsequently, thus putting her in as good a 
position as if it had been reserved or voluntarily 



DECEMBER TERM, 1891. 265 

Spurlock V, Brown. 

yielded by the contract, destroy her rights in his 
estate which had not, by the agreement made un- 
der the facts as they existed, been impaired beyond 
equitable remedy. No subsequent bounty, be it 
ever so munificent, could cure the infirmities of 
such a transaction, and convert it into a binding 
agreement. 

The decree of the Chancellor is aflirmed. 



DISSENTING OPINION. 

Lea, J. I cannot agree to the conclusion reached 
by a majority of the Court in this case. The 
Court correctly, as I conceive, holds that the 
marriage-contract was executed by Mrs. Spurlock 
with a full knowledge of its terms; but "because 
she was not informed of the legal effect of mar- 
riage upon some money she had loaned Spurlock 
before marriage, the marriage-contract is to be set 
aside, and not to be held binding on her. If she 
understood, as I agree with the Court she did, the 
terms of the marriage-contract, that it was ex- 
plained to her, knew the effects thereof, knew 
what she was to get from his estate in the event 
of marriage, and then signed and acknowledged it, 
she, after marriage, is bound thereby, although she 
may have been ignorant of the effect in law of 
marriage upon some money she had loaned Spur- 
lock before marriage. It does not aflirmatively 



266 NASHVILLE : 



Spurlock V. Brown. 



appear that she did not know the law. Nothing 
was said by her about it, and no inquiry was 
made, and no explication* given. 

The result is, that although the marriage-contract 
was well understood by her, and fully explained, 
yet, because it does not affirmatively appear she 
knew the legal effect of marriage upon some prop- 
erty of hers, the contract must be held invalid 
and of no force and effect, and this though no 
inquiry was made and no thought given the sub- 
ject by either party. The parties evidently had 
an understanding in regard to this money, for, 
after the marriage, she demanded and he gave his 
note for the amount, which she held at the time 
of his death. Such a ruling by this Court would 
virtually do away with all marriage-contracts, for 
if the wife had a7iy property, however insignificant 
in amount, at the time of signing the contract and 
marriage, and after many years it could not be 
affirmatively shown that she knew the legal effect 
of marriage upon said property, the contract would 
not be binding, however well its effects and terms 
were known and understood by the parties. Such 
certainly never was the law, as I think, until this 
decision, from which I respectfully dissent. 



DECEMBER TERM, 1891. 267 



Lancaster v. The State. 



Lancasteb v. The State. 
{Nashville. February 27, 1892.) 

1. Murder. Verdict for murder in first degree upon circumstantial roidence 

approved. 

This Court approves the verdict for murder in first degree, with sentence 
of death, rendered in this case upon circumstantial evidence alone. 
The facts are fully set out in the opinion of the Court. (Post^ pp. 26q- 
284,) 

2. Charge of Court. Correct as to circumstantial ezndence. 

Court's charge in a murder case upon the subject of circumstantial evi- 
dence is correct in this language, viz. : *^In order to warrant you in 
convicting the defendant in this case, the circumstances proven must 
not only be consistent with his guilt, but they must be inconsistent 
with his innocence, and such as to exclude every reasonable hypoth- 
esis but that of his guilt ; for, before you can infer his guilt from cir- 
cumstantial evidence, the existence of circumstances tending to show 
his guilt must be incompatible and inconsistent with any other rea- 
sonable hypothesis than that of his guilt." (/Vj/, /. 28^.) 

m 

3. Criminal Practice. Oath of jury. Recital of. 

The recital in an order impaneling jury in a felony case that the jurors 
were ** elected, tried, and sworn well and truly to try the issues 
joined," shows a sufficient swearing of the jury without adding **and 
true deliverance make," or other words. (Post, pp. 28J, 286.) 

Cases cited and approved: Fitzhugh z/.' State, 13 Lea, 260; Baxter v. 
State, 15 Lea, 657. 

Cited and distinguished: Hargrove v. State, 13 Lea, 179. 

4. Same. Officer's oath sufficient. Recital of. 

The recital in an order impaneling jury in a felony case that the officer 
in whose charge the jury were placed was ** sworn as required by 
law" or "according to law," is sufficient without setting out the lan- 
guage of the oath administered. [Post , pp. 286^ 287.) 

Case cited and approved: Taylor v. State, 6 Lea, 235. 

Cited and distinguished: Buxton v. State, 89 Tenn., 216. 



268 NASHVILLE : 



Lancaster v. The State. 



5. Same. Satiu, 

And this correct recital is not vitiated by recitals in subsequent respite 
orders that the jury returned into Court in charge of their o6ficer 
"heretofore sworn to ktep them." {Post, pp, 286, 287,) 

6. Same. Verdict not set aside upon defendanVs unsupported affidavit. 

The verdict in a murder case will not be set aside upon the unsupported 
affidavit of the defendant, averring misconduct of jury upon informa- 
tion and belief. {Post, pp. 287, 288.) 

7. Same. Same, 

Nor will such verdict be set aside because the Court refused to call the 
jurors, upon defendant's motion, to impeach their verdict upon the 
ground that they did not believe the defendant guilty. Such affi- 
davits cannot be heard by the Court. {Post, pp. 288, 28g.) 

Case cited and approved: Hannum v. State, 90 Tenn., 647. 

8. Same. Court may disregard jury* s finding of mitigating circumstances. 

The trial Judge may, in his discretion, disregard the jury's finding of 
mitigating circumstances in a murder case and refuse to commute 
the sentence from death to imprisonment for life. Such action of 
the trial Judge is approved in this case, {Post, pp. 28g, 2go.) 

Code construed: §6098 (M. & V.) ; J 5257 (T. & S.). 

Cases cited and approved : Greer v. State, 3 Bax., 322 ; Lewis v. State, 
3 Head, 127, 150. 



FROM GILES. 



Appeal in error from the Circuit Court of Giles 
County. E. D. Patterson, J. 

J. p. Abbrnathy for Lancaster. 

Attorney-general Pickle for the State. 



DECEMBER TERM, 1891. 269 



Lancaster v. The State. 



Caldwell, J. Larkin Lancaster, the appellant, 
18 under sentence of death- for the murder of Zack 
Dixon. He has been three times tried by Court 
and jury with same result. The judgment of the 
Circuit Court has been twice reversed in this 
Court, and the case is now here for the third 
time. A new trial is sought on several grounds.- 
In the first place, it is contended that the con- 
viction is not sustained by . the evidence ; that the 
proof shows neither the corpus delicti nor the 
identity of appellant as the murderer. 

Zack Dixon, who is alleged to have been mur- 
dered, was a black negro boy, seventeen years of 
age, and residing on a farm near Pulaski, in Giles 
County. He was last seen by the witnesses at 
his mother's house, and at other places in that 
county, on the first Sunday in November, 1888, 
and has not been heard from since his disappear- 
ance—after sundown of that day. He expressed 
no purpose of leaving the county, made no prep- 
arations to leave, and no reason is shown why he 
should have done so. He was an industrious, well- 
behaved boy, and left behind a matured cotton 
crop, some clothing, and other property, which he 
made no eftbrt to dispose of in any way, and 
has never called for himself. 

On the first day of December, some three weeks 
after the sudden and unexplained disappearance of 
Zack Dixon, the headless body of a male negro, 
about his size, was found near Hick's Bluff, two 
and one-half miles below Pulaski, in Richland 



270 NASHVILLE : 



Lancaster v. The State. 



Creek, several miles from where he was last seen 
by the witnesses, the trunk, with arms attached, 
being confined by a' piece of rope in one sack, 
and the severed legs tied up in another sack. In 
each sack was also a heavy rock, used as a sinker, 
and in the one containing the legs was a butcher- 
knife. One of these sacks was tow and the other 
cotton. An inquest was promptly held, and the 
body was viewed by numerous persons before in- 
terment. 

This body, the State contends, was the body of 
Zack Dixon. 

The coroner, some of his jurors, and many of 
the other persons who saw the body, were ex- 
amined as witnesses in this case. 

The head was never found; consequently, identi- 
fication of the person was rendered more than 
ordinarily difficult. 

The State endeavored to show tViat the headless 
body was that of Zack Dixon by means of certain 
articles of apparel and certain flesh-marks found 
upon it, and* also by its general appearance; and 
upon all these points the prisoner endeavored to 
meet the eflTort of the State by such conflicting 
evidence as he was able to produce. 

On the dead body, when taken from the water, 
was found a part of a plain, hand-sewed, domestic 
shirt, with sleeves "hemmed back at the wrist- 
band," because too long originally; and on one 
arm was a "leather wristband.'' About ' the pres- 
ence of these articles on the body when rescued 



DECEMBER TERM, 1891. 271 

Lancaster v. The State. 

from the creek, and their description, all the wit- 
nesses are agreed. 

Millie Suggs, mother of Zack Dixon, testified 
that he "had two burnt places on the shin of 
his leg and a scar across the instep of his foot;" 
that she "saw the dead body, and knew it was 
Zack;" that she saw upon one leg and foot the 
scars which she knew were upon his person at 
those places; that she was "positive the dead 
body was that of Zack Dixon," her son ; and, 
furthermore, that she made, with her own hands, 
the shirt Zack had on when he left her house 
late in the forenoon of the day, on which he was 
last seen alive, and knew the piece found on the 
dead body to be a part of that same garment; 
that she knew it by her "sewing, and the tuck 
on -the wristband sleeve;" that she "made it with 
her fingers, and knew her sewing;" that she 
" turned back the wristband and hemmed it be- 
cause it was too long;" that she made two shirts 
for him from the same piece of ^ goods and by the 
same pattern. One of these garments he put on 
at her house in the forenoon of the day he dis- 
appeared ; the other one she brought into Court 
for comparison with that taken from the dead 
body.' "The sewing appeared to be the same on 
both," and they were alike in all respects, except 
the one found "on the body ^Vas a little larger 
in the collar," had "a little wider collar-band and 
plait,'' and was darker in color than the other 
one. This witness further said that she described 



272 NASPIVILLE : 



Lancaster 7'. The State. 



the scars upon her son's foot and leg and "the 
tuck in the sleeves" of the shirt before she saw the 
dead body; that the leather wristband found upon 
one of the arras " was the one Zack had on when 
he left " her house for the last time ; that " where 
the skin was on the body found, it was same color 
of Zack." 

S. W. Beck, with whom Zack Dixon worked 
in 1888, testified that Zack left his house on Sat- 
urday before the first Sunday in November of that 
year to visit his mother, a few miles away, and 
return on Sunday evening; that for some unknown 
reason he did not, return; that he knew Zack had 
a scar on instep of right foot, and another one 
on leg, having seen them when Zack was bare- 
footed and had his " pants rolled up ; " that he 
saw on the dead body in question " the same k4nd 
of scars, and in the same places;" that he was 
"satisfied it was the body of Zack Dixon from 
these scars," the leather wristband, and the " size 
of body and color ; " that " Zack cut a piece of 
bridle-rein off of a blind-bridle of witness for a 
wristband," which he thinks is the same leather 
wristband found on the body ; that " the body 
found was the body of Zack Dixon." 

Mattie Dixon, a sister of Zack, says he "had 
a scar on leg and on foot, down on front;" that 
he put on clean shirt, made by their mother, the 
morning of the first Sunday in November, 1888; 
that the "wristband w^as turned over and whipped 
dx)wn;" that her "mother always did the shirts 



DECEMBER TERM, 1891. 273 

Lancaster v. The State. , 

that way when they were too long;" and that 
she thought she had seen the shirt found on the 
dead body before. 

J. J. McCoUum, the Coroner, testifies to the 
finding of the two sacks, and as to their contents, 
as hereinbefore stated, including the piece of shirt 
and the leather wristband. He says also that the 
body was that of " a black negro " man or boy ; 
that he saw "some patches of black skin hang- 
ing" upon it; and that he "found an indenture 
or scar or crease on one foot," but "did not ex- 
amine foot closely." 

Caleb Osborne, one of Coroner's jury, says he saw 
"scar on the leg" of dead body; that Zack Dix- 
on's mother described the scars, the shirt, and the 
hem on wristband before she saw the dead body; 
that they "found the shirt as she had said," and 
she identified it when she saw it; that the body 
was that of a "black negro man or boy," but 
presented a "light brown color where the skin 
was slipped off." 

Dr. George D. Butler says he examined body at 
request of Coroner, and found on instep of " one 
foot either a scar or indentation made by a rock 
while in the sack," but " saw no scar on leg, 
* * did not look for any;" that "it was a 
black negro boy ; " that " water had a tendency to 
cause the cuticle to slip off, and the outer skin, 
had slipped off in many places." 

Tom May, of Coroner's jury, says he saw no 

scars, and looked for none; that the general ap- 
18—7 p 



274 • NASHVILLE : 



Lancaster v. The State. 



pearanee of the body where cuticle had come oft* 
was "mulatto or yellow," but that it was "black" 
where no such change had taken place. 

Ben Aymett says Zack had a "scar on instep 
and leff;" that he examined dead body, and, from 
its " color and size " and " scar on leg at same 
place," he thought it was Zack's body; that "it 
was a shade lighter " than Zack, but the " water 
had bleached it." 

Dr. J. C. Roberts says he saw the body taken 
out of the creek ; that " it was the body of a 
black negro;" that "the water made the body 
look ashy and pale somewhat." 

Ed F. McKissack says the body had "black 
spots between the shoulders," and that "the outer 
skin had slipped oft' except in spots." 

H. E. Butler says the body when taken out of 
the creek "was yellow," and that "Zack Dixon 
was black as a crow." 

Dr. William Batt says "the skin of a negro 
consists of two main layers;" that "the coloring 
matter of the negro's skin is in the outer cuticle, 
and when that slips off* it exposes the inner or 
true skin;" that "if a dead body be put in water 
for any length of time it makes the cuticle slip." 

Touching the identity of the dead body, the 
prisoner examined six witnesses, the substance of 
whose evidence will next be given. 

M. M. Maclin, who interred the body, says he 
examined it "closely for scars and found none;" 
that he examined both feet and legs particularly, 



DECEMBER TERM, 1891. 276 

Lancaster v. The State. 

because he *' had heard the mother of Zack -say he 
had Bears on his right leg and foot;" that "body 
was the color of a mulatto." 

Dr. W. A. Milhouse says he made the exami- 
nation with M. M. Maclin; "examined both feet 
and legs particularly," and "focmd no scars;" and 
that he thinks "the body was that of mulatto." 

Dr. G. A. Abernathy "saw no scars on the 
body," but "did not examine it closely;" says he 
thinks "it was the body of a mulatto," and that 
the skin was not off; that he does not think 
"soaking a black negro's body in water Would 
change it" to the appearance "of mulatto without 
destroying skin." 

Grant Butler says he "found no scars on foot 
or leg," but "did not examine body very care- 
fully;" that it was of "mulatto color." 

Sam Hopkins says the body was " lighter in 
color than Zack," but about his " size," and " of 
his appearance through the shoulders." 

J. W. Judson says body was "bright mulatto," 
and "if the skin had slipped from body he did 
not notice it." 

This evidence clearly establishes the corpus delicti; 
it leaved no room for reasonable doubt that Zack 
Dixon was murdered, and that the headless body 
found in Richland Creek was his body. 

The identity is shown by the flesh-marks, the 
shirt, the leather wristband, and the color and size 
of the body. 

That Zack Dixon had scars upon one foot and 



276 NASHVILLE : 



Lancaster v. The State. 



leg 18 • shown without contradiction. All the wit- 
nesses who saw these scars upon his living person, 
and who made examination, readily found scars of 
same character and location on the dead body. 
There were three of these witnesses — Zack's mother, 
Beck, and Aymett — %ind two other witnesses, with- 
out close examination, discovered a scar, or some- 
thing like one, on one foot; and another one 
noticed a scar on one leg. 

On the other hand, there are four witnesses who 
looked for scars and failed to. find them. None 
of these, however, had seen the scars on Zack 
Dixon's body while living, and only two of them 
claim to have made a careful examination of the 
dead body. It is not strange that persons having 
seen the marks on the living body could more 
readily than other persons discover them upon the 
dead body. 

The evidence about the shirt is of but little less 
potency. The day Zack Dixon disappeared he put 
on" the shirt found upon the dead body, and wore 
it away from his mother's house. She identified 
the garment positively by the peculiar work of her 
own hands upon it, as well as by comparison with 
another one of the same kind and mak^. The 
peculiarity about the sleeves could not be mistaken. 
It was observed at once by those who saw it while 
on the dead body and afterward. That peculiarity 
she described, as she did the scars on her son, 
before she saw either the shirt or the dead body, 
and by that description one of the witnesses recog- 



DECEMBER TERM, 1891. 277 

-Lancaster v. The State. 

nized the shirt* He says they "found the shirt 
as she had said," and she promptly identified it. 
Her identification is not discredited, nor is its 
force weakened, by the fact that the shirt produced 
in Court, as of the same goods and pattern, was 
whiter than that found on the dead body, and not 
so large in the collar. She did not claim that 
the collars were of precisely the same size and 
make. Garment^ made by the same pattern fre- 
quently differ in such small particulars. The difter- 
ence in color is well accounted for by the fact 
that one had been in water on a dead body, and 
the other had been "washed clean." 

The proof about the leather wristband is like- 
wise of marked importance, though in ft less degree 
than that as to the flesh-marks and the shii't. 
That Zack Dixon had such an article on one of 
his wrists the day of his disappearance is clearly 
shown, and his mother says the leather wristband 
found on the dead body is "the one Zack had on 
when he" left her house that day. She states no 
mark or peculiarity by which she recognized it. 
She may have been mistaken. 

Beck expresses the belief that this wristband is 
the same that he saw Zack Dixon make from a 
piece of bridle-rein belonging to witness, yet he 
does not identify it positively. 

The ' dead body was of proper size and color 
for Zack Dixon. He was black, and all the wit- 
nesses who examined the whole of the dead body 
say it was black. Most of the witnesses who 



278 NASHVILLE : 



Lancaster v. The State. 



speak of it, say it was of an ashy, yellow, or mu- 
latto appearance, but this is manifestly due to the 
fact that the water had "bleached it," or caused 
the " outer cuticle to slip oft'" of the parts ex- 
amined by them. Others state emphatically that 
it was black where the "skin had not slipped off'." 
The next question is, Did Larkin Lancaster, the 
prisoner at the bar, perpetrate the murder? He 
is a married man, and in 1888 .was living with 
his wife and children on Pisgah Hill', in Giles 
County. "Mandy" Crittenden, his sister-in-law, 
was also a member of his family. He was very 
partial to her, and said many extreme things to 
keep other men from associating with her. Zack 
Dixon, though several years her junior, paid her 
some attention. This seems to have greatly en- 
raged defendant, and to have caused him to make 
deadly threats against the life of Zack Dixon. 
Some two weeks before his disappearance Zack 
Dixon attended a party at defendant's house, 
" danced with Mandy " and talked with her " out- 
side of the house." On that occasion, while under 
the influence of liquor, Lancaster made threats of a 
most serious character. To the witness, Beck, he 

said he "would kill that rascal, Zack Dixon, if 

it was the last thing he ever did." At a later hour, 
the same evening, he attempted — as his father- 
in-law, Alex. Crittenden, testifies—to shoot Zack 
Dixon, and would have done so but for the timely 
interposition of the father-in-law. This was while 
" Zack was sitting outside of the house with 



DECEMBER TERM, 1891. 279 



Lancaster v. The Stn.te. 



Mandy." Alex. Crittenden further says that when 
he "prevented" defendant from shooting, defendant 
said " this aint the last time," and that he " would 
drink his own heart's blood before he would let 
any man get in his path." He says, also, that 
he at another time heard defendant " tell Smith 
Woodson that he was going to kill Zack," and 
that he (witness) "advised him not to do any 
such thing." 

Smith Woodson testifies that defendant said to 
him, two or three weeks before Z^ck Dixon's dis- 
appearance, that he "had told Zack to let Mandy 
alone," and that "Zack must do it," and if he 
did not, defendant would "kill him and put him 
away where he wont be found;" that in this con- 
versation defendant said of Mandy, "she is mine." 

Thus it is made to appear, without any proof 
to the contrary, that defendant had a strong 
motive to take the life of Zack Dixon. No 
motive to commit the crime is shown in any one 
else — not even a circumstance pointing to any 
other person as the murderer is disclosed in the 
record. 

Walter Cross says he saw Zack Dixon at the 
foot of Pisgah Hill, one mile from defendant's 
house, and going in that direction, between sun- 
down and dark, on the day of his disappearance; 
that Zack " said he would probably come to meet- 
ing after awhile," at a place of service in the 
neighborhood, but he did not do so. 

That was the last time any of the witnesses 



280 NASHVILLE : 



Lancaster v. The State. 



saw Zack Dixon alive. Where he was then going 
he did not state. On the following morning de- 
fendant voluntarily told W. C. Davis that Zack 
Dixon " had promised to come to his house the 
night before," but had failed to keep his promise. 
At dark that night Wash Neal, in passing de- 
fendant's house, halted to inquire where " preach- 
ing was to be that night," and called defendant 
three times, loud enough to be heard in the house, 
but got no response. Prince Wilson and James 
Tucker say they came up while he was calling, 
and the three went to church together. Where 
defendant was at this time no witness knows. 
After being suspected of the murder of Zack Dixon, 
the defendant told James Tucker that he was in 
his house and heard the calling; but he assigned 
no reason for not answering. No witness saw him 
anywhere that night, nor any member of his fam- 

9 

ily, except Mandy Crittenden, who was seen at 
church. 

How he was engaged — if in his house or not, 
whether innocently, with none but his wife and 
children present; or secretly, with the dead body 
of Zack Dixon, already slain; or politely detain- 
ing him, with a view of accomplishing a foul 
purpose later on, at a more opportune hour — no 
witness undertakes to state, and the Court will 
not surmise. 

Though defendant had two or three children of 
sufficient age to testify, he put none of them on 
the stand to say that Zack Dixon was not at his 



DECEMBER TERM, 1891. 281 

Lancaster v. The State. 

house that night, or where he himself was, or 
how engaged. 

Three witnesses, who were at as many diflferent 
places in the neighborhood, say they heard one or 
more reports of a gun or pistol in the direction 
of defendant's house about nine or ten o'clock that 
Sunday night. This evidence is general. > The 

witnesses did not profess ability to locate the 

« 

sound of the gun or pistol with certainty. 

If Zack Dixon was killed with gun or pistol, 
the wound or wounds must have been inflicted 
upon the missing head, for none could be discov- 
ered on the parts of the body rescued from the 
waters of Richland Creek. 

W. C. Davis says he met defendant and his 
son in the public road, five miles from and going 
toward Pulaski, and three miles from Pisgah Hill, 
at eight o'clock Monday morning after Zack Dixon 
disappeared Sunday night; that defendant asked 
him the time of day, and then inquired if he had 
seen Zack Dixon in Pulaski, saying Zack " had 
promised to come to his house the night before, but 
he did not come ; " that defendant was riding on 
one horse, with a sack in front of him, and his 
boy on another horse, with another sack;" that 
"the sacks were full, and looked like bags of 
rags or cotton ; " that he " saw blood dropping from 
under the sack, down the shoulder of the horse 
the boy was riding;" that one of the sacks was 
made of tow and the other of cotton ; that he 
observed them with suflBicient care to see that de- 



282 NASHVILLE : 



Lancaster v. The State. 



fendant "had the tow sack and the boy the cot- 
ton sack;" and, finally that they were "just like" 
the sacks in which the dead body was found, but 
he could not say that "they are the same." 

Strangely, if innocent, the defendant introduces 
no witness to deny, explain, or in any manner 
break the force of these facts, strongly inculpatory 
as they are. Where he and his son were going 
that Monday morning, the character of the bur* 
dens they bore, and what they did with them, no 
witness is brought to state. Not even the son 
himself comes to declare that the trunk and limbs 
of Zack Dixon's dead body were not in the two 
sacks, and to . explain or deny the dropping of 
blood from the sack in his charge. He, at least, 
knew the real facts, and could unquestionably have 
enlightened the Court and jury. Though living' 
in the defendant's family and under his control, 
he is not introduced, and no excuse is given for 
his non-appearance as a witness. 

That defendant was traveling upon a public 
highway and made no effort to avoid Davis does 
not, of itself, indicate innocence; nor does his 
voluntary reference to Zack Dixon at that time 
have that effect. The latter rather indicates guilt. 
If guilty of murder, with the body of his victim 
concealed before him, it was natural for him to 
make such inquiry and declaration as he did to 
avert suspicion. This record fails to disclose any 
other reason for mentioning Zack Dixon's name at 



that time. 



DECEMBER TERM, 1891. 283 

Lancaster v. The State. 

It should be noted in passing that neither the 
State nor the defendant shows how far or in what 
direction the point at which defendant and his son 
met Davis is from Hicks' Blulf, near which the 
dead body was found. 

Hutch Crittenden, a brother-in-law of defendant, 
testifies that defendant approached him soon after 
Zack Dixon's disappearance, and requested him "to 
say that Zack had stolen a horse and gone to Tex- 
as," and that witness "had given him two dollars 
to go off on." Witness says he replied that he 
did not let Zack have . " any two dollars," and that 
he would not make the false statement requested. 

Emily Currie says defendant went to her house 
the next week after Zack Dixon was missing and 
told her husband, in her presence, that he (de- 
fendant) was being accused of murdering Zack, 
and that he did not do it; that, upon being asked 
where Zack was, defendant said he had stolen a 
horse, and gotten two dollars from Hutch Critten- 
den and gone off to Texas; that defendant then 
told her husband in her hearing to circulate that 
story if any one inquired of him about Zack; 
that defendant got angry, swore, and denounced 
Hutch Crittenden as a falsifier when witness told 
him Hutch Crittenden denied letting Zack Dixon 
have any money. 

Smith Woodson says defendant told him Zack 
Dixon had gotten "into a pistol case and ran 
away," as he had been informed by Hutch Crit- 
tenden. 



284 NASHVILLE : 



Lancaster p. The State. 



James Tucker, one of the witnesses who passed 
defendant's house and Heard Wash Neal calling' 
him the night of Zack's disappearance, says de- 
fendant told him, about a week after that time, 
that "he expected they would have him [defend- 
ant] up about Zack Dixon," and that he wanted 
witness " to stick to him ; " and that defendant 
further said he was at home lying on the bed the 
night "Wash Neal called him, and heard every 
word that was said." 

In fact, there were no charges against Zack 
Dixon. He had violated i>o law, and had no 
reason to flee the country, so far as can be seen 
from this record. The stories which defendant en- 
deavored so anxiously and boldly to put in circu- 
lation were but the productions of his own brain* 
They had no foundation in fact. 

Though no witness saw Larkin Lancaster take 
the life of Zack Dixon, the many circumstances 
detailed establish the fact as conclusively as if 
sworn to by credible eye.-witnesses. They exclude 
every other reasonable hypothesis. Strong motive, 
deadly threats, favorable opportunity, strange se- 
crecy about the premises, bold efforts to fabricate 
exculpatory evidence, unexplained possession of 
burdens corresponding in appearance with sacks 
known to contain parts of the dead body — all 
these concur. 

As to the venue, but little need be said. Ex- 
actly where the murder was committed no witness 
knows, but the proof is that the place at which 



DECEMBER TERM, 1891. 285 

Lancaster v. The State. 

Zack Dixon was last seen alive and Pisgah Hill, 
where defendant lived, and the public, road, where 
Davis met defendant, and Hick's Bluff, on Rich- 
land Creek, where the dead body was found, are 
all in Giles County. This is sufficient. 

The charge to the jury was full, clear, explicit, 
and accurate in all of its parts. On the most 
vital point in the case Nth e Court said to the jury: 
"In order to warrant you in convicting the de- 
fendant in this case, the circumstances proven must 
not only be consistent with his guilt, but they 
must be inconsistent with his innocence, and such 
as to exclude every reasonable hypothesis but that ^ 
of his guilt, for, before you can infer his guilt 
from circumstantial evidence, the existence of cir- 
cumstances tending to show his guilt must be in- 
compatible and inconsistent wuth any other reason- 
able hypothesis than that of his guilt." 

All rulings as to evidence were correctly made. 

It is assigned as error that the trial jury was 
not properly sworn. The position is not well 
taken. After reciting that , defendant was '* ar- 
raigned and charged upon the indictment in this 
case, and that he pleads not guilty thereto," the 
record states that the jurors were "elected, tried, 
and sworn well and truly to try the issues joined." 
Though omitting the words "and true deliverance 
make," and some other words of the common law 
form, the oath thus shown to have been adminis- 
tered is entirely sufficient. Language of precisely 
the same legal import has, more than once, been 



286 NASHVILLE : 



Lancaster r. The Stale. 



held by this Court to meet the requirements of 
the law. Fitzhugh v. The State, 13 Lea, , 260; 
Baxter v. The State, 15 Lea, 657. 

It was not decided in Hargrove v. The State, 
13 Lea, 179, as insisted by counsel, that such an 
oath was insufficient. It was only said in that 
case that **if" an oath in like words "was de- 
fective," the defect was cured by a fuller state- 
ment of the oath in the minute entry containing 
the verdict. 

It is also urged that the oath administered to 
the officers attending the trial jury was not a 
' legal oath. The record recites that they were 
** sworn as required by law in such cases." Man- 
ifestly that recitation was sufficient. If they were 
*' sworn as required by law," nothing more was 
essential. It was not necessary that the oath 
taken by such officers should be set out on the 
record. The bare statement that they were "sworn 
as required by law," or " according to law," is 
enough. Taylor v. The State, 6 Lea, 235. 

The law prescribes a certain oath, and if the 
oath administered is set out on the record, to be 
good it must show all the requisites. Buxton v. 
The State, 5 Pickle, 216. 

The recital, in subsequent entries in the case at 
bar, that the jury returned into Court "under 
charge of the same two officers heretofore sworn 
to keep them,'' cannot justly be termed a statement 
of the oath really taken. The words, "/o hrcp 
them,'^ were not used for such a purpose. The 



DECEMBER TERM, 1891. 287 

Lancaster v. The State. 

object of these later entries was to identify the 
officers in charge of the jury, and not to set out 
the oath administered to them. 

Finally, it is contended that a new trial should 
be awarded on account of matters set out in de- 
fendant's affidavit seeking that relief below. 

The verdict returned was as follows : " We, the 
jury, find the defendant guilty of murder in the 
first degree, with mitigating circumstances." 

The substance of the affidavit is, that upon re- 
tiring to consider of their verdict, some of the 
jurors were opposed to conviction because not sat- 
isfied of defendant's guilt, and they finally con- 
sented to a verdict of guilty only because they 
were, by the other jurors and the presiding Judge, 
"induced to believe" that under a verdict in the 
form rendered "the Court could adjudge a pun- 
ishment short of death;" that affiant "is informed 
and believes that the verdict * * was so ren- 
dered because the jury had a doubt of defendant's 
guilt, and not because there were any mitigating 
circumstances;" that "affiant has tried to get some 
of said jury to make an affidavit, but they refused 
to do so," on account of which retusal he " asks 
the Court to call around the members of said jury 
and interrogate them as to the facts herein stated," 
affiant being " unable to get the true facts before 
the Court in any other way." 

On presenting that affidavit defendant's attorney 
moved the Court to examine the jurors touching 
the matters therein stated. This the Court refused 



288 NASHVILLE : 



Lancaster 7'. The State. 



to do, on the ground that the jurors had refused 
to make affidavits and seemed satisfied with their 
verdict. 

The entry on the record further recites that 
"the only foundation for the statement in defend- 
ant's affidavit 'to the effect that some of the 
* jurors would not consent to such a verdict until 
some of their number went to see the Judge, and 
returning stated such could be done,' was this: 
Said jury, shortly [before] returning their verdict, 
came into open Court, in a body, in charge of 
their officers, and one of said jurors asked the 
Court if in this kind of a case they could find 
'mitigating circumstances;' the Court replied': *Ye8, 
you will find this matter in the written charge 
which you have;' whereupon the jury retired and 
in a short time returned their verdict." 

The action of the trial Judge was right in both 
respects — in refusing a new trial upon the unsup- 
ported affidavit of defendant, and in declining to 
have the jurors examined about their verdict. 

Conceding the truthfulness of the claim that 
some of the jurors would not have agreed to the 
verdict but for their belief that "the Court could 
adjudge a punishment short of death," that consti- 
tutes no ground for a new trial. The legal prop- 
osition which it is said "they were induced to 
believe," was entirely sound; the Court had the 
power supposed. Code (M. & V.), § 6098. 

The other suggestion, that the "jury had a 
doubt of the defendant's guilt," is contradicted by 



DECEMBER TERM, 1891. 289 

Lancaster v. The State. 

and inconsistent with the verdict, whose verity 
cannot be questioned in the mode adopted. 

As the jurors declined to make affidavits, and - 
in no manner indicated any dissatisfaction with 
their verdict, the Court did right in refusing to 
have them examined on the unsupported affidavit 
of the defendant. 

Such a practice as that sought to be introduced 
would, to say the least, result in interminable con- 
fusion and disorder not to be sanctioned for a 
moment. Hannum v. State ^ 6 Pickle, 647. 

The case at bar is not analogous to that of 
Nelson v. State^ 10 Hum., 532-534. There it was 
made manifest to this Court that the jury "were 
laboring under erroneous impressions as to the law 
of the case before them." It is not so here, for, 
by defendant's own statement, they correctly under- 
stood the law as to the legal effect of their ver- 
dict in the form rendered. There they returned 
a verdict unauthorized by law, and that under 
such circumstances as to indicate confusion in their 
minds; not so here. Besides, in that case, five of 
the jurors made affidavits showing unquestionably 
that they had been misled, without fault on their 
part. Here no juror makes an affidavit, and there 
is no indication that any of them were misled in . 
any way. 

Any assumption of defendant that some of them 
may have been misled by the Court with refer- 
ence to the form of the verdict is refuted by the 
recital quoted from the record. 
19—7 p 



290 NASHVILLE : 



Lancaster v. The State. 



After properly overruling motions for a new 
trial and in arrest of judgment, the trial Judge 
pronounced sentence of death upon the defendant, 
notwithstanding the finding of mitigating circum- 
stances by the jury. He was authorized to do 
that, or to commute the punishment from death 
to imprisonment for life, as in his sound discre- 
tion, and upon an unbiased and discriminating sur- 
vey of, the whole case, the ends of public justice 
might seem to demand. Code (M. & V.), § 6098; 
Oreer v. The State, 3 Bax., 822 ; Lewis v. The 
State, 3 Head, 127 and 150. 

There was no abuse of that discretion in this 
case; no mitigating circumstances are disclosed in 
the record before us. In Lewis' case, as in this, 
the trial Judge declined the commutation. 

Let the judgment be affirmed. 



DECEMBER TERM, 1891. 291 



Turnpike Co. v. Davidson County. 



Turnpike Co. y. Davidson County. 



{Nashcille. March 1, 1892.) 



I. Turnpike Companies. Charter rights ofj not violated iy creation of new 
roads and bridges^ when. 

The obligation of the charter contract, whereby a turnpike com- 
pany is authorized to exact tolls from persons passing over its 
road and through its gates, is not impaired or violated, within the 
prohibition of the constitution, by the action of the County Court 
creating new public roads and bridges, the necessary effect of which 
is to divert travel from the turnpike and seriously reduce the com- 
pany's revenues, provided the new roads and bridges are not, in 
intent and effect, mere shun-pikes, but reasonably essential to the 
public convenience; and, provided further, they are not located 
within territorial limits exclusively devoted to the turnpike company 
by a reasonable and valid provision of its charter. 

Constitution construed: Art. I., J 20. 



2. Same. Impairment of franchises by lawful creation of new roads atid 
bridges not a taking of property. 

And the impairment of a turnpike company's franchises and revenues 
by such lawful creation of public roads and bridges does not consti- 
tute such taking of its property for public uses as will render the 
county liable for damages thus inflicted. 

Constitution construed: Art. I., §21. 

Cases cited and approved: Turnpike Co. v. Maury County, 8 Hum., 
342; Moses V, Sanford, 11 Lea, 731 ; Levisay v, Delp, 9 Bax., 415; 
II Pet., 548; I Black, 380; 3 Wall., 75, 210; 15 Wall., 512. 



3. Same. Necessary public roads are not shun-pikes. 

Public roads and bridges demanded by the general convenience, and 
created to subserve that end, are not shun-pikes, although ihey n ay 



292 NASHVILLE : 



Turnpike Co. v. Davidson County. 



incidentally afford the means of passing around the gates of a turn- 
pike company and evading the payment of tolls. 

Cases cited: Nashville Bridge Co. v, Shelby, lo Yer., 280; Turnpike 
Co. V, Maury County, 8 Hum., 350. 



FROM DAVIDSON. 



Appeal from the Chancery Court of Davidson 
County. Andrew Allison, Ch. 

Dkmoss & Malonb for Turnpike Co. 

Andrew J. Caldwell and East & Fogg for 
Davidson County. 

Lea, J. The city of ISTashville is located upon 
the south bank of the Cumberland River, and 
within the bend of the river. From the opposite 
side the city is approached by two turnpikes which 
operated ferries across the river. The complainant 
company crossed the river about three miles below 

m 

the city, and the other nearer the center of the 
bend. The complainant company had its toll-gate 
for a number of years at a point about ' two 
miles from ISTashville, but in 1877 moved the same 
to the river, and there collected toll and ferriage 
at the same place. 

In 1885 the citizens living in certain districts 
of the county across the river petitioned the 



DECEMBER TERM, 1891. 293 



Turnpike Co. v, Davidson County. 



County Court to erect a bridge over Cumberland 
River, setting forth tbe growing necessity for the 
accommodation of that comraunitv, and that in 
high water the turnpikes could nt)t be traveled; 
that the boats at the ferries did not run in high 
waters, and at no time after sundown. Commit- 
tees were appointed to petition the County Court, 
and represent the necessity of the bridge. Com- 
mittees were appointee] by the Court to investigate 
and report. Authority was obtained from Con • 
gress to erect a bridge over the river. Finally, 
the county determined to build the bridge, and 
appointed a committee to locate it and superintend 
its construction, and appropriated for its erection 
$100,000. It was located about two-thirds of a 
mile above the ferry of complainant. It was com- 
menced in 1887, and finished in 1889, costing the 
county about $124,000, including the approaches, 
when completed. The approach to the bridge on 
the north side was extended through the bottom 
up to complainant's road, intersecting it about one 
mile from the bridge. On the south side the 
Court opened and ordered opened a road, extend- 
ing aboi>t one mile to the Jewish Cemetery, to- 
ward Nashville. The natural result of opening 
this free bridge was to divert travel from com- 
plainant's turnpike. 

Thereupon, this bill was filed by complainant, 
alleging that by such action of the county it had 
lost almost its entire revenues w^hich it was en- 
titled to collect as tolls; that its chartered privi- 



291 NASHVILLE : 



Turnpike Co. v, Davidson County. 



leges were not only impaired, but destroyed, and 
its road virtually confiscated by the county with- 
out any compensation. It further alleged that 
the approach to the bridge on the north side of 
the river and the parallel road ordered to be 
opened on the south side were intended to be 
used by the promoters of the new bridge and the 
roads as a shun-pike, and preliminary injunction 
was prayed for and refused by the Chancellor. 
The allegation of the bill as to the intention to 
cause shun-pikes was denied in the answer, and 
it is alleged that the public convenience required 
the building of the bridge and the approaches 
thereto. 

The proof in this cause conclusively establishes 
the statement of the answer that the people in 
the localities reached by complainant's road had 
for many years greatly needed an outlet to the 
city and other portions of the county, and es- 
pecially the twenty-third, twenty-fourth, and twen- 
ty-fifth civil districts of the county ; that they 
were practically cut off during high water, and 
could not at any time cross the river after sun- 
down, and were practically cut off from market. 
This turnpike run from Nashville to Ashland City, 
in Cheatham County. It was chartered in 1848. 
The charter is in the ordinary form of turnpike 
companies. The grant of franchise is not exclu- 
sive. When the grant is not by its express terms 
exclusive, it cannot be held to be so by implica- 
tion. 11 Pet., 548. In that case it was said : 



DECEMBER TERM, 1891. 296 

Turnpike Co. v. Davidson County. 

*'The continued existence of a government would 
be of no great value, if by implications and pre- 
sumptions it was disarmed of the powers necessary 
to accomplish the end of its creation — the func- 
tions it was designed to perform transferred to 
the hands of privileged corporations;" and in that 
case the United States Supreme Court determined 
that where a charter for a bridge company does 
not contain any express contract, that the State 
would not authorize another bridge to be built to 
the injury of the corporation — a law empowering 
another corporation to erect a free bridge so near 
to the first bridge as practically to deprive the 
first corporation of all tolls, is not a law impair- 
ing the obligation of any contract. 

The principle was settled by this case, and fol- 
lowed in numerous decisions, that when the grant 
is not by its terms exclusive, the Legislature is 
not precluded from granting a similar freedom of 
erecting a rival way or structure, the result of 
which may be to greatly impair, or even totally 
destroy, the value of the former grant, and such 
damage is not a taking of the former franchise 
which entitles its owner to compensation. Lewis 
on Eminent Domain, 136 and cases cited; 1 Black, 
380; 3 Wall., 75-210; 15 Wall., 512; 8 Hum., 342; 
11 Lea, 731; 9 Bax., 415. 

If any 'property of complainant is taken, com- 
pensation must be made, but only for the property 
actually taken and the damages incidental to the 
property; but the loss incident to or in deprecia- 



296 NASHVILLE: 



Turnpike Co. v, Davidson County. 



tion of the franchise is not to be considered. 
Moses V, Sanford, 11 Lea, 731; Lewis on Eminent 
Domain, 484. 

The right to take toll for travel over their 
road is not impaired or interfered with, and no 
part of their road is used as a part of the roads 
opened by the county, but it is insisted that there 
was a taking^ in the fact that the road on the 
north side leading from the bridge runs into com- 
plainant's road, occupies its ditches, and physically 
touches the pike. Its easement is simply, without 
forfeiture, made to contribute to a great public 
convenience in aftbrding an outlet to the bridge; 
no franchise is taken away, and its right of way 
is uninjured, and no compensation can be demanded, 
for it is not a taking. But it is insisted that the 
building of this bridge and approaches may not be 
the impairing of a contract in the absence of such 
contract in the charter, yet it is in violation of 
constitutional right to permit the County Court 
to construct a new road in the same territory 
around complainant's toll-gate and ferry, and in 
doing so to intersect on the north of the river 
with the turnpike, and on the south so extending 
the road from the end of the bridge as to inter- 
sect with roads leading to the turnpike and inter- 
secting same between the gate and the city; that 
such is the practical result, and was deliberately 
intended to be, by the promoters of the new bridge 
road, a shun-pike. 

More than once the question of shun-pikes has 



DECEMBER TERM, 1891. 297 



Turnpike Co. v. Davidson County. 



been before tbis Court. In the case of the Nashville 
Bridge Company v. Shelby, 10 Yer., 280, it arose 
under an application of a party #who owned the 
banks on both sides of the river for leave to 
establisb a ferry in competition with the bridge 
located upon contiguous territory. Judge Reese 
sard the petition was properly refused, and that 
"the only question for the County Court to deter- 
mine was whether public convenience made it proper 
to grant the prayer of the petition." 

The case of Turnpike Company v. Maury, 8 
Hum., 350, was an application by the turnpike 
company to enjoin the county from maintaining as 
a public road a by-way which it constructed from 
a point on complainant's road between the first 
toll-gate and Columbia, close to the gate, around 
the gate, re-entering the pike on the opposite side 
of the gate, not far from it, and by which the 
rights of the company would have been seriously 
impaired. 

The Court held that, as the manifest purpose 
and necessary result was to establish a shun-pike, 
^nd as it appeared the turnpike was a better and 
shorter road than the county road which took 
from the company substantial profits, there was 
consequently no demand for the road as a public 
convenience; and the action of the County Court 
was held to be an abuse of its powers. Judge 
Turley qualifies the whole of his opinion by this: 
" It is not meant that the Legislature may not 
charter other public roads for public convenience, 



298 NASHVILLE : 



Turnpike Co. v, Davidson County. 



a necessary but indirect consequence of which may 
be a diminution of travel; but that no such 
charter could be granted, the only end and purpose 
of which would be to evade the payment of tolls." 

But it is earnestly insisted that the County 
Court has opened a road from the south end 
of the bridge to an old county road known as 
Beck's Spring Avenue, and this avenue intersects 
the pike between Tritchler's corner and the ferry, 
and complainant has been advised by counsel that 
a crate could be re-established at Tritchler's corner 
and collect toll of persons traveling to and from 
the free bridge, but the county has ordered to be 
opened a road from the point where the bridge 
road intersects Beck's Spring Avenue to the Jew- 
ish Cemetery, which will there intersect with roads 
leading to the pike south of and between Tritch- 
ler's corner and the city, and that said road about 
to be opened is not for the public convenience, 
but is a shun-pike. In answer it is only necessary 
to say that there is no gate at Tritchler's corner. 
As before stated, the gate was removed from there 
about fifteen years ago, and whether after such 
abandonment it could be re-established, it is un- 
necessary to now determine. There is no gate 
there, and therefore can be no shun-pike. 

From the decisions of the Supreme Court of 
the United States, and our own Court, the follow- 
ing principles are deducible: 

First, — The grant of a franchise may be exclu- 
sive, or it may be silent in that respect. A toll- 



DECEMBER TERM, 1891. 299 

. Turnpike Co. v. Davidson County. 

^ ' ... 1. 

bridge or ferry, or other franchise is often granted 
with a provision that no other competing bridge, 
ferry, or turnpike shall be erected within a certain 
distance above or below the one granted, and this 
exclusiveness may be limited or unlimited in its 
duration. 

Second, — When the grant is not by its terms 
exclusive, no presumptions or implications will sup- 
ply the omissions in the grant, and the Legislature 
is not precluded from granting' a similar freedom 
of . erecting a rival way or structure, the result of 
which may be to greatly impair or even totally 
destroy the value of a former grant, and such 
damage is not a taking of the former franchise 
which entitles its owner to compensation. 

Third. — If any property is taken, compensation 
must be paid, but only for the property actually 
taken and the damages incidental to the property, 
but the loss incident to or depreciation of the 
profits of the franchises is not to be considered. 

Fourth, — In this State the County Courts are 
clothed with the powers and duties of laying out 
and maintaining public roads and highways for the 
convenience of the general public. 

Fifth, — That a road cannot be built only for the 
purpose and intent of evading the payment of toll 
upon a turnpike. 

Sixth, — That the County Court may erect or 
open a road when the same is required by public 
convenience or necessity^ even though the effect of 
the same is to diminish or destroy the value of a 



300 If ASHVILLE : 



Turnpike Co. v. Davidson County. 



franchiae formerly granted to a bridge, ferry, or 
turnpike. 

Applying these principles to the facts proven in 
this case, the decree of the Chancellor dismissing 
coniplainant's bill is affirmed with costs. 



DECEMBER TERM, 1891. 301 



Bank v. Dibrell. 



Bank v. Dibrell. 
{Nashville. March 3, 1892.) 

1. NegotiabI.e Instruments. Notice of non-payment ineffectual, when^ 

Notice to indorser of demand and non-payment of a negotiable note is 
insufficient, though duly sent by the notary and received by the in- 
dorser through the tnails, if the notice is unsigned. 

Cases cited ancl approved: i6 Cal., 375 ; 10 Mass., 522. 

2. Same. Indorser* s waiver of notice of demand and non-payment. 

But if -the indorser, with full knowledge that such notice is defective 
and insufficient to bind him, promised to pay the note in considera- 
tion of indulgence granted, this is a waiver of all defects in the 
notice. 

3. Same. Same. Averments in pleadings. 

And such .waiver of notice may be proved under an averment that 
notice was given. A count upon the new promise is not essential. 

Case cited and approved: Bogart v. McClung, 11 Heis., 117. 



FROM WHITE. 



Appeal in eri-or from Circuit Court of White 
County. W. M. Hammock, J. 

W. T. Murray for Bank. 

W. G. Smith & Son for Dibrell. 



802 NASHVILLE : 



Bank v. Dibrell. 



LuRTON, J. This is an action against an in- 
dorser upon a note payable to and at People's 
National Bank, McMinnville. 

The notice of demand and non-payment sent by 
the Notary Public to the indorser was, in form, 
proper. It was signed, however, by no one. This 
was probably inadvertent. It was, for this defect, 
insufficient as notice. The notice of non-payment, 
and that the holder will look to the indorser, 
must be given by the holder, his agent or attor- 
ney. An unsigned notice sent by mail is not a 
notice by the holder or his agent. This was so 
ruled in 16 Cal., 375. A notice signed by the 
Notary, by mistake in the name of the maker, was 
held bad. 10 Mass., 522. 

Upon receipt of this unsigned notice the in- 
dorser consulted counsel as to its sufficiency, and 
was advised that the notice was bad. After this, 
and with full knowledge of his discharge, he un- 
equivocally promised to pay the note, and obtained 
indulgence. Such ,a promise, after knowledge of 
his discharge, is an admission of notice — an ad- 
mission of the . sufficiency of the notice he had 
received ; and a declaration alleging that notice 
had been given is sufficient to let in evidence of 
such a promise; and an allegation that he had 
made such promise, or a count upon a new prom- 
ise, is not necessary. Bogart v. McClung^ 11 
Heis., 117. 

There is no error in the judgment, and it is 
affirmed. 



DECEMBER TERM, 1891. 803 



Nance v. Busby. 



Nance v. Busby. 
{Nashville. March 5, 1892.) 

1. Religious Societies. Capacity of unincorporated to hold lands. 

A deed is not void upon the ground that the vendee is an unincorpo- 
rated religious association which conveys a church lot to "the Regu- 
lar Primitive Baptist Church, at Nashville, of the old school, and of 
which Elder Philip Ball is the present pastor or minister, and their 
successors of same faith and order forever." By statute such associ- 
ations, whether incorporated or unincorporated, are empowered to 
take and hold "not exceeding five acres of land at one place for 
purposes of public worship." {^Posty pp, jcj*, J/^.) 

Code construed: §2006 (M. & V.) ; J1508 (T. & S.). (See Acts 1889, 
Ch. II, as to parsonages.) 

Cases cited and approved: Reeves z^. Reeves, 5 Lea, 644; Heiskell «/. 
Chickasaw Lodge, 87 Tenn., 668; 2 Pet., 566; 8 B. Mon., 78. 

2. Same. Same, Construction and effect of deed. 

And this deed created a trust in the property conveyed for the benefit 
of such persons only as were or should become members of the par- 
ticular associ(ition named as vendee. The interest of the beneficia- 
ries under this deed is dependent upon membership in the association, 
and is of such character that it begins and ends with membership. 
This deed created a trust so specific and definite that the Courts will 
interfere to prevent the diversion of the property from the use of the 
particular "faith and order" named, and this intervention may be 
invoked by a faithful minority against a heretical majority. {Post^ 

Cases cited and approved; Bridges?/. Wilson, 11 Heis., 458; Deadrick 
V. Lampson, ii Heis., 523; 2 Bligh, 529; i Dow., i; 3 Merivale, 
353: 13 Wall., 680; 67 Penn. St. ; 3 B. Mon., 258; 7 Dana, 190; 

2 Pet., 585. 

i 

3. Same. Status of excommunicated and witJidrawn members. 

After a member has voluntarily withdrawn, or has been expelled from 
such association, he ceases to have any right or interest in its property. 



304 NASHVILLE : 



Nance ?'. Bushy. 



and he cannot thereafter maintain suit for himself, or for himself and 
existing members of the association in sympathy with him, against 
other members of the association complaining of diversion of its 
property. Persons withdrawn or expelled from membership are not 
of same class with actual members, although they may be in sympa- 
thy with each other. [Posty pp, 315-317') 



Same. Validity of excommunication of members. 

The excommunication of members by an unincorporated religious asso- 
ciation, done in the exercise of its powers of discipline, is valid and 
effectual, iwhen questioned in the civil Courts, to exclude the excom- 
municated ones from membership in the association, and consequently 
from any right to its property. And it is not material that the pro- 
ceedings were irregular, and the expulsion made without giving notice 
or opportunity of hearing to the excluded members, the proceedings 
are nevertheless conclusive upon the Courts. {Post ^ pp, 317-324.) 



5. Same. Same. 

And excommunication of members by such association is not vitiated 
by the fact that its members, or a majority of them» subsequently 
departed from the "faith and order" of their particular denomination. 
It would be otherwise if they had done so before, and had resorted 
to excommunication of some members as part of a scheme to divert 
the property of the association from its original purposes. {Posty 
PP- 3n. 3^S.) 



6. Same. Same. 

And such excommunication is not vitiated by the fact that under the 
organization of the particular church or association the excluded 
members had no appeal from their sentences. [Posty pp. jjj, 336.) 



7. Courts. Jurisdiction of ecclesiastical questions. 

The civil Courts have no jurisdiction of any purely ecclesiastical ques- 
tion except as an incident to the determination of civil rights. Hence, 
they will not review the action of an ecclesiastical body in disciplin- 
ing its members, however irregular or unjust that action may appear 
to be. They will, however, determine whether persons claiming 
property given in trust for a religious society of a certain '* faith and 
order" are of the required *' faith and order." They will not in- 



DECEMBER TERM, 1891. 805 

Nance v. Busby. 

quire as to the sincerity with which a religious creed is professed. 
{Post, pp^e^S-SJO') 



PROM DAVIDSON. 



Appeal from Chancery Court of Davidson County. 
Andrbw Allison, Ch. 

Stegbr, Washington & Jackson, Morton B. How- 
ell, and East & Fogg for Nance. 

Pitts & Meeks, W. G. Brien, and H. H. Barr 
for Busby. 

LuRTON, J. The case arising upon the record 
may be briefly summarized aa a conflict over the 
possession of church-property between two oppos- 
ing parties in a congregation of the regular Prim- 
itive Baptist Church. 

The property in question was conveyed, in 1858, 
by deed of Thomas Farrel, to an unincorporated 
religious society, described in the deed as " The 
Regular Primitive Baptist Church, at Nashville, of 
the old school, and of which Elder Philip Ball is 
the present pastor or minister, and their successors 
of same faith and order forever." 

Upon this lot, by the contributions of the con- 

20— 7 p 



306 NASHVILLE : 



Nance v. Busby. 



gregation, a valuable church has been erected, which 
has since been continuously occupied as a place of 
worship by a congregation composed of those now 
arrayed in hostile controversy. 

The complainants are W. L. Nance, C. W. 
Nance, S. J. Undei-wood, J. M. Corbett, and W. 
H. B. Clements, who sue " for themselves and for 
those who are members of the old Regular Primi- 
tive Baptist Church, at Nashville, of the old school, 
of which Elder Philip Ball was pastor, and being 
of the same* faith and order." 

The defendants are P. R. Busby, A. G. Byron, 
S. M. Dickens, W. W. Thompson, and W. G. 
Gilliam, " and all those who associate themselves 
with said persons in doing the things of which 
this bill complains, and who belong to the same 
class with them." 

The defendants named answer for themselves and 
their associates, who they assert comprise the mem- 
bers and congregation of the '* faith and order" 
of the one to whose use the property was con- 
veyed. 

Complainants allege that tliey, with their asso- 
ciates, constitute the only adherents of the princi- 
ples professed and practiced by the original bene- 
ficiaries in the deed, arid, as such, are the true 
successors " in faith and order " of the original 
congregation over which Elder Ball was pastor. 
They say that, though they constitute the congre- 
gation entitled to tlie sole use of the church-prop- 
erty, they have been, by the defendants, forcibly 



DECEMBER TERM, 1891. 307 

Nance v. Busby. 

^^^— ^-^aa   I ^^^^^   ..      I I ■!■»■ I I .11. 

and illegally prevented from enjoying, using, and 
controlling the property in which they have the 
entire beneficial interest. They charge that the 
defendants, who are in possession, have abandoned 
the original faith and order of the Church — that pro- 
fessed by the original beneficiaries under the deed 
— and have thereby lost all right to use and oc- 
cupy the church, and do not constitute the bene- 
ficiaries thereunder, not being the " successors in 
faith And order" referred to in said deed. ' 

In substance, they contend that the further^ use 
of this property by the defendants would be a 
diversion of the property to uses other than those 
intended by the founders of the trust and grant- 
ors in the deed. While complainants claim to be 
members of the congregation entitled to the use 
of this church, yet it is stated in their bill very 
explicitly that some of them have been excommu- 
nicated, and it is fairly inferable that all, though 
at one time recognized as members, have, at vari- 
ous times shortly antecedent to this litigation, been 
likewise excluded. These excommunications, they 
allege, were irregular and void, and constitute part 
of a scheme by which defendants sought to ob- 
tain control of the church. 

The specific facts upon which the charge of un- 
orthodoxy is predicated are these : 

First, — That defendants have abandoned the cel- 
ebration of the Lord's-supper. 

Second. — That they have ceased to observe the 
ordinance of the washing of feet. 



308 NASHVILLE : 



Nance v. Busby. 



Third. — That they have set themselves up as au 
oligarchy, by proposing and attempting to eject, 
summarily and without trial, those who protest 
against their errors. 

Fourth, — That they have incorporated their church, 
thereby " uniting Church and State." 

Fifth, — That in this charter they have declared 
that one of their objects was "to maintain all 
missionary undertakings," it being, as the bill 
states, '"one of the cardinal tenets of the Primitive 
Baptist Church, through which it is based upon the 
plain word of God, and by which it is especially 
distinguished from all other Christian denomina- 
tions, * * * that missionary undertak- 
ings are not permitted, and are therefore forbidden 
by the Holy Scriptures." 

The defendants answer under oath. They deny 
that complainants are members of the congrega- 
tion ; they explicitly assert that each and every 
one of those named as a complainant has been 
excommunicated and cut off from membership for 
disorderly conduct and contempt of the church; 
they say that they now, and always have, steadily 
held the doctrine, ordinances, and discipline of the 
regular Primitive Baptist Church, without any de- 
viation or change "from the days of Philip Ball;" 
they deny that they have abandoned, suspended, or 
questioned the ordinances of the Lord's-supper and 
the washing of feet. 

As to the circumstances under which a corpo- 
ration was organized to hold their church-property. 



DECEMBER TERM, 1891. 309 



Nance v. Busby. 



they say: That after the withdrawal of the church 
from the two Nances that they were informed that 
an attack was to be made upon their title to their 
church; that they learned that the deed had not 
been made to trustees, but to an unincorporated 
congregation; that they consulted counsel, who ad- 
vised that to save their property from recovery by 
the grantor, or his heirs or assigns, it would be 
necessary to incorporate their church ; that the 
church, in a business meeting, instructed the 
deacons to procure a religious incorporation; that 
the matter was intrusted to counsel, who filled up 
one of the formal applications required by the 
general law. The provision appropriate to a cor- 
poration for purposes other than .profit turned out 
to contain a declaration of purposes, one of which, 
taken from the statute, is "the maintenance of all 
missionary undertakings." They say that this ap- 
plication was signed by the committee in haste, 
and without knowing that • these objectionable 
words were embraced; that this objection was not 
discovered until complainant's bill called attention 
to it, when the church, in conference, repudiated 
the same unanimously, and spread their action uj)on 
their minutes, with the history of the oversight. 
Defendants join in agreeing that missionary enter- 
prises, as fostered by other churches, ought not to 
be encouraged or countenanced. Upon the plead- 
ings no difterences of opinion seem to exist as to 
the principle tenets held by the opposing parties 
to this unfortunate controversy. The sincerity with 



yiO NASHVILLE: 



Nance v. Busby. 



which defendants have, and do now hold, the re- 
ligious views they avow in their answer, cannot 
be doubted. Certainly no civil Court will under- 
take to determine the sincerity with which a re- 
ligious creed is professed. When two factions in 
the same congregation disagree as to which is en- 
titled to the control of the church -property, and 
both sides profess adherence to the same faith and 
practices, the right must depend upon the will of 
the majority, unless there be shown some law, 
regulation, rule, or practice of the church deter- 

1 

mining otherwise. Hadden et aL v. Cham et aLy 
8 B. Monroe, 76. 

The questions seemingly open are these: 

First. — The ecclesiastical consequences of the fact 
of incorporation. 

Second. — The ecclesiastical effect of the declaration 
in the charter of a purpose to maintain missionary 
undertakings. 

Third. — The ecclesiastical effect of the fact, if it 
shall turn out on the evidence to be a fact, that 
the ordinances of the Lord's-supper and washing 
of feet have not been observed by defendants, 
when such failure to observe them is not the re- 
sult of any change of opinion as to their efficacy 
or the duty of observing them. 

Fourth. — The validity of the excommunications 
of complainants. 

A jury was called, and under direction of the 
Chancellor the following issues, among others 
deemed wholly immaterial, were submitted : 



DECEMBER TERM, 1891. 311 



Nance v. Busby. 



First. — "Before the expulsion, or alleged expul- 
sion of complainants, how many persons were 
members of said Primitive Baptist Church, and, of 
such persons, how many were adhering to and 
represented by complainants, and how many were 
adhering to and represented by defendants at the 
commencement of this suit?" 

To this the jury responded : "About one hun- 
dred and thirty; and about thirty were represented 
by complainants, and about ninety were repre- 
sented by defendants." 

Second, — When the bill was filed in this case, 
November 10, 1888, were defendants and their 
associates the successors of the same faith and 
order of the regular Primitive Baptist Church at 
Nashville, of the old school, of which Elder Philip 
Ball was pastor March 28, 18«)?" 

To this the jury answered "No." 

Third. — ^^*If defendants have departed from that 
faith and order, how and when was it done ? " 

To this the jury responded : " By taking out 
charter September 12, 1888." 

Fourth. — " Were complainants and their associates 
expelled from said church in accordance with its 
usages and practices or the law of the land, and, 
if not, then in what way were their usages and 
practices, or the law of the land, violated?" 

To this the answer was: "They were not. By 
excluding them without notice or opportunity 
to defend themselves according to the usages 
and practices of the Primitive Baptist Church, of 



312 NASHVILLE : 



Nance v. Busby. 



Nashville, of which Philip Ball was pastor in 

1850." 

The decree based upon the facts thus deter- 
mined recites : 

'^First, — The Court is of opinion, and so de- 
crees, that the force and effect of verdicts of juries 
heretofore entered are that complainants, W. L. 
N'ance and associates in this litigation, are the 
regular Primitive Baptist Church, at Nashville, of 
the old school, of which Elder Philip Ball was 
pastor on March 28, 1850, and are tlie regular 
successors of the same faith and order of said 
church, and have not been expelled from said 
church, or ceased to be members of said body. 

^^ Second, — The Court further finds and decrees 
that the force and effect of said verdicts are that 
P. R. Busby, A. G, Byron, S. M. Dickens, B. W. 
Thompson, W. G. Gilliam, and their associates in 
this litigation, are not the successors of the same 
faith and order of that regular Primitive Baptist 
ChuVch, at Nashville, of the old school, of which 
Elder Philip Ball was pastor March 28, 1850." 

To carry out this decree a writ of possession 
was ordered to issue to eject the defendants and 
place the complainants in peaceable possession. 

The questions arising upon the errors assigned 
by defendants are of deep interest, and have re- 
ceived very deliberate consideration. 

The eftect of this decree is to eject from this 
church a very large majority of its members, and 
turn its property over to a minority who in the 



DECEMBER TERM, 1891. 313 

Nance 7% Busby. 

judgment of the Chancellor constitute the faithful 
remnant. 

The jurisdiction of a civil Court to adjudge any 
ecclesiastical matter must result as a mere inci- 
dent to the determination of some property right. 
Thus, where property has been conveyed to some 
religious use, and that use is express and specitic, 
and has been indicated by the donor and is set 
out in the conveyance, a trust arises, and a Court 
of Equity will, upon application of the beneficiaries, 
as it would in case of any other sort of valid 
trust, prevent any diversion of such property to 
any other than the purposes of the founders of 
the trust. In the case of a definite trust for the 
maintenance of a particular faith or form of wor- 
ship, the Court will even go so far as to prevent 
the diversion of the property by the action of a 
majority of the beneficiaries; and, if there be a 
minority who adhere to ,the original principles, such 
minority will be held to comprise the exclusive 
beneficiaries, and entitled to the control and enjoy- 
ment of the property without interference by the un- 
faithful majority. These principles seem to be well 
settled in this country as well as in Great Britain, 
and upon this legal ground the decree of the Chan- 
cellor rests. Craigdallie v. Aikman, 2 Bligh, 529, 
and 1 Dow., 1 ; Attorney-general v. Pearson^ 3 
Merivale, 353; Watson v. Jones, 13 Wall., 680; 
Schnorr's Appeal, 67 Penn. St. Our own cases of 
Bridges v. Wilson, 11 Heis., 458, and Deaderick v. 
Lampson, 11 Heis., 523, are in harmony. 



814 NASHVILLE : 



Nance v. Busby. 



The conveyance under which this property is 
held is so specific and definite as to the ^' faith and 
order"' of the conveyees as to prevent its diversion 
to the use of any other than a congregation of 
Christians of the particular sect and holding the 
particular views entertained by the original bene- 
ficiaries. 

That it was an unincorporated society at the 
time of the grant does not operate to defeat it. 
The fact that no conveyee was in existence an- 
swering the specific designation of the grantee 
named in the deed, is obviated by our Act of 
1843-44, carried into the Code as § 1508. This 
Act empowered "any religious denomination, whether 
incorporated or not, to take by deed or otherwise, 
and hold, not exceeding five acres of land ,at one 
place, for purposes of public worship." This Act 
was construed as creating a quoM corporation^ and 
a devise to just such a religious congregation was 
supported. Reeves v. Beeves^ 5 Lea, 644. 

An Act of the same character, concerning sub- 
ordinate lodges of Odd Fellows, was similarly con- 
strued in Heiskell v. Chickasaw Lodge, 87 Tenn., 
668. Upon somewhat the same ground a Mary- 
land statute of same character was held sufiicient 
to save a gift of property to the German Lutheran 
Church. Beaty v. Kurtz et ai., 2 Peters, 212. See 
also Tow7i of Pamlett v, Clarke, 9 Cranch, 292, aad 
Hodden v. Cham, 8 B. Monroe, 78. 

The beneficiaries under this deed are all such 
persons as are members of the congregation an- 



DECEMBER TERM, 1891. 315 

Nance v. Busby. 

swering the description therein. The interest of 
all such members, while not a pecuniary one, is 
yet such a direct interest in the property so de- 
voted to a pious use as to entitle them to apply 
to a Court of Equity to prevent its diversion. 
With membership this beneficial interest arises, and 
upon a continuance of membership this interest 
depends. When membership ceases the beneticial 
interest in the property terminates. Said the Ken- 
tucky Supreme Court: "It is only as a constituent 
element of the aggregated body ' or church that 
any person can acquire or hold, as a cestui que 
tntstj any. interest in the property thus dedicated 
to that church." 3 B. Monroe, 258; Curd v. 
Wallace, 7 Dana, 190; Hadden v. Chaim, supra. 

When many persons constitute a voluntary so- 
ciety, a few may sue in behalf of the whole. Or, 
if such an association be divided, and each claims 
exclusive use of common property, a few may sue 
in behalf of all who stand on the same side, and 
a few may defend for the class who resist such 
claims. This is a plain principle of equity plead- 
ing. Beaty v. Kurtz, 2 Peters, 585, and authorities 
cited therein. But in order that a few mav sue 
iu behalf of a larger number, those who sue must 
have a like interest with those they assume to 
represent. They must stand upon a plane common 
to , the whole class. lb. Is this the case with 
complainants and their associates whom they claim 
to represent ? 

Aside from the effect of the pleadings and issues. 



816 NASHVILLE : 



Nance v. Busby. 



the evidence establishes tliat three of complainants 
were in fact separately excluded, and upon different 
occasions, and that another voluntarily withdrew 
from membership. There is no evidence as to the 
exclusion or withdrawal of the other. This status 
is settled by the evidential effect of the sworn 
answer denying his membership and asserting his 
expulsion. 

There may be persons associated with them in 
sympathy and interest who are not expelled mem- 
bers of this church, but if this be so, complainants 
cannot stand for or represent such persons unless 
the action of the church in the exercise of its 
power of discipline shall turn out to be a nullity, 
which this Court may disregard and reverse as 
the Chancellor did. 

Excommunicated members, whose names have 
been by the valid action of the church expunged 
from the , roll of members, cannot stand for and 
represent members. They are not of the same 
class. Has this Court the power and jurisdiction 
to inquire into the regularity of the sentence of 
the church by which complainants were excluded? 
Unless it has this jurisdiction, and shall in its ex- 
ercise determine that this excommunication was 
illegal, complainants have no such interest in the 
property of this church as will enable them to 
question the orthodoxy of defendants, or their right 
to 'the use and enjoyment of the property of this 
congregation. A different question would be pre- 
sented if it appeared that before such sentence of 



DECEMBER TERM, 1891. 317 

Nance v. Busby. 

excommunication the majority bad abandoned the 
faith and practice of the original beneficiaries, and 
that they had been cut oft* for adherence to the 
old ways by such majority, as a mere scheme to 
better enable them to misapply the property. Such 
a charge was intimated in the bill. But the verdict 
of the jury sets at rest every suggestion of heresy 
or departure from the "faith and order" of the 
original organism antecedent to the acts of expulsion 
complained of. If the defendants have ceased to 
be of the ''faith and order" of the regular Prim- 
itive Baptist Church, it was by the taking out of 
the charter on September 12, 1888, a fact subse- 
quent to the acts of excommunication. 

The learned Chancellor was of opinion, and so 
instructed the jury, that the merits of these acts 
of excommunication could not be inquired into. 
To this we certainly agree. But he was of opin- 
ion that the jurisdiction of the church to pronounce 
these sentences might be inquired into. He in- 
structed the jury that all such exclusions must be 
in accordance both with the usages of the church 
and the law of the land, lie left the jury to 
grope amidst volumes of evidence as to the usage 
of this church, and discover, as best they could, 
the ecclesiastical law bearing on the question, but 
instructed them that excommunication from the 
church would be valid only when in pursuance of 
the usage of the church and the law of the land. 
As to the law of the land, he said to the jury: 

"In this State this church, nor any number of 



318 NASHVILLE : 



Nance v. Busby. 



its members calling themselves the church, had any 
right *to expel or exclude C. W. Nance or W. L. 
Nance, or any of their adherents, without first no- 
tifying them, him, or her of the time of trial and 
of the charges upon which the trial was to be 
had, so as to give them an opportunity to be heard 
by himself and his witnesses before judgment." 

How far this charge affected the result in this 
case is not clear. This church is an independent 
congregational church. Discipline is administered 
by the body of the congregation. It has no body 
of canon law prescribing procedure in such cases. 
No written rules prescribe notice or require a trial. 
A majority of those members voting when the 
church sits in conference determines the result upon 
any motion or resolution disciplining a member. 
There was much conflict as to the practice of 
the church as to notice, charges, and trials. Some 
twenty-five cases of previous excommunications by 
this congregation were recorded in the church- 
minutes. In some of those cases there were 
charges and notice of time and place of trial. 
In others there seemed to have been no notice or 
trial ; while in still others the records are silent. 
The opinions of members on the practice were, as 
might be expected, much in conflict. But, waiving 
this, and assuming that the usage of the church 
had been violated in the judgments of excommuni- 
cation against complainants, we come to the ques- 
tion as to whether members so excluded can, in 
effect, appeal from such a sentence of an ecclosi- 



DECEMBER TERM, 1891. 819 

Nance v. Busby. 

astical tribunal to a civil Court, or must the civil 
Court accept the fact of excommunication as a faet^ 
whether regularly or irregularly pronounced. Com- 
plainants rely upon a line of cases which we think 
by no means conclusive. They may be divided 
into two classes : 

First — Cases of wrongful exclusion of corporators 
in civil corporations, whereby some civil or pecu- 
niary right was affected. Of this class are the 
cases of Bartlett v. Medical Society^ 32 N. Y., 187; 
Commonwealth v. German Societyy 15 Penn. St., 251 ; 
The State^ ex rel., v. The Georgia Medical Society^ 
38 Ga., 608; King v. University of Cambridge, 2 
Ld. Raymond, 1347; Rex v. Town of Liverpool^ 2 
Burr., 734. 

In all these cases a civil or educational or busi- 
ness corporation was concerned, and in all of 
them the power to compel admission was as clear 
as the power to reverse an illegal, exclusion. In 
all a civil or property right was involved. The 
principle governing these cases is, that where a 
legal right of admission has been ignored, or where 
the grounds for expulsion are legally insufficient, 
that the Courts will inquire and adjudicate the 
right. This has become plain text-book law. 2 
Kent's Comm., 298; Grant on Corporations, 245- 
248 ; Woods' Field on Corporations, Sec. 55. 

Where a society has become incorporated for the 
purpose of maintaining religious worship, the rights 
of a member of the incorporation are one thing, 
and his rights as a member of the church wor- 



320 NASHVILLE : 



Nance c. Busby. 



shipping in the building owned by the corporation 
may be quite another thing. His rights in the 
corporation and as a corporator will depend exclu- 
sively upon the law creating the corporation. The 
New York and Massachusetts cases, when compared 
with the Iowa cases, illustrate the difference be- 
tween corporators who become such by church- 
membership alone and corporators whose rights 
are in no way dependent on church-membership. 
In New York the statute authorizing incorporation 
of religious societies has been construed as creating 
purely civil corporations, and that, under the Act, 
all attendants, regardless of church-membership, are 
corporators, and entitled to vote in all corporate 
elections for trustees. The title of the trustees, 
under such a statute, was held not to be affected 
by any change of religious views by themselves or 
those who elect them. Baptist Church v. Wetheral, 
3 Paige, 296; Petty v. Tooker, 21 N. Y., 267. 

In the latter case it was held that the property 
conveyed to such a statutory corporation could 
only be affected with a trust for the teaching of 
any particular faith or creed by an express condi- 
tion in the deed. 

In this case of Hardin v. Baptist Churchy 51 
Mich., 137, Judge Cooley drew a clear distinction be- 
tween membership in a church and membership in a 
corporation by holding that a religious corporation, 
holding the title to church-property, was not liable 
to the suit of a church-member for illegal expul- 
sion from the church. S. C, 47 Am. Rep., 555» 



DECEMBER TERM, 1891. 821 

^■^^^^^^^^^^»^—  ■■^— ■■■■■■-■ I  ■[■■■^■■M  ^11 — 

Nance v. Busby. 

So in the case of Salt v. Baptist Churchy 62 
Iowa, 26, it was held that a religious society could 
not be compelled to re-instate a member wrong- 
fully expelled, although he thereby lost his rights 
as a corporator, which depended on church-mem- 
bership. 

The case of Gray v. Christian Society^ 137 Mass., 
329, has been much relied upon as sustaining the 
proposition that expulsion without notice and fair 
trial will be held void. The case does not sup- 
port the proposition. The society was evidently 
an incorporation. It had a civil organization and 
a code of by-laws. By one of these it was pro- 
vided that any member who should cease to wor- 
ship regularly ' with the society, or should fail to 
contribute to the support of public worship for the 
time of one year, should be dropped from the list 
of membership. Another by-law prescribed that all 
persons owning or renting pews who should pay 
annually the sum of five dollars should be deemed 
members of the society, and entitled to vote at 
the annual meetings. At a meeting of the mem- 
bers, held to consider the sale of the society build- 
ing, enough persons to have changed the result were 
present and opposed to the sale, if their votes had 
been received. These votes were rejected upon the 
ground that, having failed to comply with the by- 
law, they stood dropped. A bill was tiled to 
restrain the sale. On these facts the Court held 
that the rejected votes should have been received, 
inasmuch as the facts as to their having failed to 
21—7 p 



822 NASHVILLE : 



Nance v. Busby. 



attend regularly or to pay the aonual dues were 
facts to be ascertained by trial after notice, and 
that the Moderator had no arTjitrary power to de- 
cide these questions and refuse the votes of such 
persons until they had been upon trial excluded. 

The cases cited to support the conclusion are 
English cases, relating to a very different relation 
of the church to the State — a relation settled by law 
and upon which civil rights rested. The case of 
Stait V. Adams^ 44 Mo., 570, is the only American 
case cited by the learned Judge. That was the 
case of a removal of trustees of an educational 
corporation by an act of the legislature. The act 
declared a cause of removal, and then adjudged 
these trustees quietly and summarily ejected from 
the corporation. Manifestly neither this case nor 
the one which it is cited to support have any bear- 
ing upon the case in hand. 

The quasi corporate power conferred upon a 
religious congregation to hold title to land for 
church-purposes under the Code, confers no other 
corporate privilege. The corporators — if in theory 
there be any — are the church -members, and when 
membership ceases all legal rights as a quasi cor- 
porator terminate. No such civil or property right 
is conferred by such qua^i corporate relationship 
as to vest any independent right to remain a cor- 
porator after termination of church connection. 
The rights of complainants as beneficiaries under 
the deed conveying the property to this congre- 
gation depend, not upon their relation to this 



DECEMBER TERM, 1891. 823 

-■■   I  --.-I MM  —  ■—  -.  _^ , ■■-■ ,,|| ,   .-.I  — »■■   

Nance v. Busby. 

quasi corporation, but upon their relation to the 
church. 

The second class of cases referred to by com- 
plainants are those which relate to membership in 
unincorporated societies, whereby one acquires cer- 
tain social or pecuniary rights — such as clubs, as- 
sociations, and societies. If a member by member- 
ship acquires any advantage of a civil or. pecuniary 
kind in such an association, some Judges have 
thought that wrongful expulsion gave a right of 
action. In all these cases the suit in law or 
equity has been sustained upon the ground that 
the relations of a member to such societv were 
contractual, and if the relation had been severed 
in violation of the laws regulating membership, 
enacted by themselves, that there was a breach of 
contract. With reference to this class of cases the 
rule may be stated in the language of the Court 
in Fisher v. Krone^ 11 Ch*. Div., 353, "that in 
every proceeding before a club, society, or associa- 
tion having for its object the expulsion of a mem- 
ber, the member is entitled to be fully and fairly 
informed of the charge, and to be fully and fairly 
heard. And that the Court will, at the instance 
of any member so proceeded against, declare any 
resolution passed bj'^ the committee without pre- 
vious notice to him, based upon ex parte evidence, 
and purporting to expel him from the club, to be 
null and void, and will restrain the committee by 
injunction from interfering, by virtue of such a 
resolution, with his rights of membership." 



324 NASHVILLE : 



Nance z/. Busby. 



. It ifl certainly a principle of universal justice 
that no man's civil or property rights or privileges 
shall be affected or adjudicated without an oppor- 
tunity to be fully and fairly heard. The cases 
bearing upon this question are stated in the note 
to Gray v. Christian Society^ 50 Am. Rep., 818. 

But do these principles apply to church-member- 
ship? 

If no civil, social, or property right attaches to 
such membership, there is no necessary analogy 
between this case and those involving the loss of 
some such right by expulsion. 

The relations of a member to his church are 
not contractual. No bond of contract, express or 
implied, connects him with his communion or 
determines his rights. Church relationship stands 
upon an altogether higher plane, and church-mem- 
bership is not to be compared to that resulting 
from connection with mere human associations for 
profit, pleasure, or culture. The church undertakes 
to deal only with the spiritual side of man. It 
does not appeal to his purely human and temporal 
interests. Admission to its fold is prescribed alone 
by the church, professing to act only upon the 
word of God. It' claims the power of the keys 
by divine and not human authority. Its right to 
determine the grounds of admission has never been 
questioned. Why shall the co-ordinate right of 
exclusion be scrutinized by the civil power? No 
property rights of a personal kind depend upon 
membership. No pecuniary right, or civil right of 



DECEMBER TERM, 1891. 325 

Nance v. Busby. 

any character, was affected by expulsion. A bene- 
ficiary under such a deed as that in question has 
no pecuniary interest whatever, and can never have. 
His only right as a beneficiary is to prevent the 
diversion of the property. It was upon this ground 
that the case of Sale v. Baptist Chcrck, supra^ was 
decided. Although expulsion deprived the member 
of his rights as a corporator to vote for trustees, 
yet, as his rights as a corporato-r depended upon 
his connection with the church, he was held to 
have no action against the corporation or any right 
to be re-instated. 

Civil Courts deal only with civil and property 
rights. They have in tliis country no ecclesiastical 
jurisdiction. If, to determine a property right, it 
becomes necessary to adjudge an ecclesiastical ques- 
tion, the Courts will go only so far as is neces- 
sary to determine the effect of ecclesiastical law 
or relations on property rights. We are not to 
be understood as approving an expulsion from 
church-membership bj'^ irregular methods and with- 
out notice to the member. But here we have a 
fact to be dealt with — the fact that this church, 
sitting as a court, has determined for itself that 
it had the power and the right to exclude these 
complainants. They have, as a judicature, adjudged 
that they had the jurisdiction, and that the usage 
and law of the church did not demand other trial 
or notice than such as attended the public action 
of the church. The law of the church provides 
for no appeal to a higher tribunal. They may 



326 NASHVILLE : 



Nance v. Busby. 



have erred in their procedure. It is not for a 
civil Court to revise their action in a matter so 
vital to their freedom as a church. 

Defendants, in their answer, say they "protest 
as a church against the effort of complainants to 
be re-instated to church-membership by an appeal 
to the civil Courts. This church," say they, "with 
all deference to the Honorable Court, claims that 
in all matters purely ecclesiastical it is her pre- 
rogative, untrammeled by any earthly tribunal, to 
deal with its members, and that no civil tribunal 
is invested with the jurisdiction to annul its solemn 
decrees of excommunication of its members. * * 
It was never intended that the law should meas- 
ure the religious status of the citizen. Shall a 
Chancellor adjudicate who shall partake of the 
Lord's-supper? Shall any church stand a suppli- 
catit before any earthly judicature and receive a 
reversal of a judgment of expulsion?" 

These • be strong words, but true. We have 
been referred to no reported case where any civil 
Court in this country has undertaken to overrule 
the fact of excommunication upon any ground 
whatever. We think that the effect of the judg- 
ment of this congregation, it being that of the 
only judicature known to such an independent 
church, is as great as if it were the decision of 
the last church -judicature in a church more highly 
organized. The weight to be attached to the de- 
cisions of such ecclesiastical jurisdictions is well 
stated by Mr. Justice Miller in the great case of 
Waison V. Jones^ 13 Wall., 728, who says: 



DECEMBER TERM, 1891. 327 

Nance v. Busby. 

"In this country the full and free right to en- 
tertain any religious belief, to practice any religious 
principle, and to teach any religious doctrine which 
does not violate the laws of morality and property, 
and which does not infringe personal rights, is 
conceded to all. The law knows no heresy, and 
is committed to the support of no dogma, the 
establishment of no cljurch. The right to organ- 
ize voluntary religious associations, to assist in the 
expression and dissemination of any religious doc- 
trine, and to create tribunals for the decision of 
controverted questions of faith within the associa- 
tion, and for the ecclesiastical government of all 
the individual members, congregations, and officers 
within the general association, is unquestioned. All 
who unite themselves to such a body do so with 
an implied consent to this government, and are 
bound to submit to it. But it would be a vain 
consent, and would lead to the total subversion of 
such religious bodies, if any one aggrieved by one 
of their decisions should appeal to the secular 
courts and have them reversed. It is of the es- 
sence of these religious unions, and of their right 
to establish tribunals for the decision of questions 
arising among themselves, that those decisions should 
be binding in all cases of ecclesiastical cognizance, 
subject only to such appeals as the organism itself 
provides." 

On the question of the jurisdiction of such tri- 
bunals, the same great Judge said: 

"There is perhaps no word in legal terminology 1 



328 NASHVILLE : 



Nance v. Busby. 



SO frequently used as the word jurisdiction, so 
capable of use in a general and vague sense, and 
which is used so often by men learned in the law 
without a due regard to precision in its applica- 
tion. As regards its use in the matters we have 
been discussing, it may very well be conceded ihat 
if the General Assembly of the Presbyterian Church 
should undertake to try o\^^ of its members for 
murder, and punish him with death or imprison- 
ment, its sentence would be of no validity in a 
civil Court or anywhere else. Or if it should, at 
the instance of one of its members, entertain juris- 
diction, as between him and another member, as to 
their individual right to property, real or personal, 
the right in no sense depending on ecclesiastical 
questions, its decision would be utterly disregarded 
by any civil Court where it might be set up. 
And it might be said, in a certain general sense 
very justly, that it was because the General As- 
sembly had no jurisdiction of the case. Illustra- 
tions of this character could be multiplied, in which 
the proposition of the Kentucky Court would be 
strictly applicable. But it is a very different thing 
where a subject-matter of dispute, strictly and 
purely ecclesiastical in its character — a matter over 
which the civil Courts exercise no jurisdiction, 
a matter which concerns theological controversy, 
church-discipline, ecclesiastical government, or the 
conformity of the members of the church to the 
standard of morals required of them — becomes the 
subject of its action. It may be said here, also, 



DECEMBER TERM, 1891. 329 

Nance v. Busby. 

that no jurisdiction has been conferred on the 
tribunal to try the particular case before it, or 
that, in its judgment, it exceeds the powers con- 
ferred upon it, or that the laws of the church do 
not authorize the particular form of proceeding 
adopted; and, in a sense often used in the Courts, 
all of those may be said to be questions of juris- 
diction. But it is easy to see that if the civil 
Courts are to inquire into all these matters, the 
whole subject of the doctrinal theology, the usages 
and customs, the written laws, and fundamental 
organization of every religious denomination may 
and must be examined into with minuteness and 
care, for they would become, in almost every case, 
the criteria by which the validity of the * ecclesias- 
tical degree would be determined in the civil Court. 
This principle would deprive these bodies of the 
right of construing their own church-laws, would 
open the way to all the evils which we have 
depicted as attendant upon the doctrine of Lord 
Eldon, and would in effect tmnsfer to the civil 
Courts, where property rights were concerned, the 
decision of all ecclesiastical questions.'' 

The case of Landis v. Cambelly 79 Mo., 433, is 
a case very much in point. It was an action for 
libel. Plaintiff had been a member of a Presby- 
terian Church. The libel consisted in the publica- 
tion of the statement that *'You [meaning plaintiff] 
were by unanimous vote excommunicated." The 
defense was that the session of the church had 
excommunicated him ; that the defendants, who 



330 NASHVILLE : 



Nance v. Busby. 



were the pastor and elders of the church, consti- 
tuted this session, and the publication was the 
official announcement of their action as a session. 

The action of the session was claimed to have 
been void, as having been taken without notice of 
the charges or opportunity to defend, and that 
action thus taken was no excuse for the publication 
afterwards made. 

The Circuit Judge charged the jury that if they 
believed from the evidences that the session, under 
the constitution of the Presbyterian Church, had 
no right to excommunicate plaintiff from the com- 
munion of said church without notice that they 
intended to proceed against him, and that if they 
did so pi*oceed and adopt resolutions finding plaintiff 
guilty of malicious falsehood, and expelling him 
from the church, and agreed that this resolution 
so adopted should be afterwards read at a public 
meeting of the congregation, that then the fact 
that defendants claimed to be acting in an official 
capacity would be no excuse for such publication. 

In a very able opinion the Supreme Court held 
this charge erroneous. The opinion, among other 
things, holding: "The civil Courts cannot review 
the decision of ecclesiastical judicatories in matters 
properly within their province under the constitu- 
tion and laws or regulations of the church." 

After citing a number of cases, some of which 
will be hereafter referred to, the Court proceeded 
to say: "Persons who join church, secret societies, 
benevolent associations, or temperance organizations, 



DECEMBER TERM, 1891. 331 

Nance v. Busby. 

voluntarily subject themselves to the jurisdiction of 
those bodies, and in matters of faith and individ- 
ual conduct aftecting their relations as members 
thereof, subject themselves to the tribunals estab- 
lished by those bodies to pass upon such questions; 
and, if aggrieved by a decision against them, made 
in good faith by such judicatories, they must seek 
their redress within the organization, a^ provided 
by its laws and regulations. If the civil Court 
should assume jurisdiction to review such proceed- 
ings upon alleged errors, they would attempt to 
administer laws not recognized by the Constitution 
or laws of the State. Actions for libel and slan- 
der would crowd the docket of the civil Court, 
which would, on that theory, be open to the com- 
plaint of every man expelled from a church or 
Masonic lodge or any of the societies of which 
this age is so plentiful. '^ ^ ^ \t follows,'' 
continues the Court, "from the principles announced 
in the above cases, that if a judiciary of a church 
had jurisdiction, by its laws, to try a member for 
an offense involving immorality, its decision* 13 final 
and not subject to be reviewed by the civil Court 
for alleged errors, and that the civil Court will 
not examine into the question of errors in the 
proceeding, but give it the same effect and form 
as if it had been regular in every respect.'^ 50 
Am., 209. 

In Harmon v. Drebur, 1 Spears' Eq., 87, the 
South Carolina Court held that "a civil Court will 
not look into the regularity of the process 



832 NASHVILLE : 



Nance 7'. Busby. 



by wliich an ecclesiastical body proceeds to judg- 
ment." 

In the case of the Gcrynan Reformed Church v. 
Sieberty 3 Penn. St., 282, it appears that Siebert 
had been expelled from the church without the 
consent of the congregation, which was required 
by the articles of the church-discipline; but the 
Court held "that the decisions of ecclesiastical tri- 
bunals are final, as they are the best judges of 
what constitutes an ofi^ense against the church of 
God and the discipline of the church. And sai<I 
the Court: "Granting that the consistory had pro- 
ceeded to disfranchise the relator without the con- 
sent of the congregation, the remedy is by appeal 
to a higher tribunal.'' The leading case upon 
the power of a secular court to look into 
the regularity of sentence of excommunication is 
that of Shannon v. Frost, 3 B. Monroe, 253. Six 
members of a Baptist Church had been expelled 
without charges or a trial. Uniting themselves 
with others of same faith, they elected officers, and 
claimed to be the church and to have the right 
to control the property. A conflict arose over the 
possession of the church, when the majority filed 
a bill to settle their rights. The opinion was de- 
livered by Chief Justice Robertson, a great name 
in the law, who, among other things, 'said : 

"This Court, having no ecclesiastical jurisdiction, 
cannot revise or question ordinary acts of church-dis- 
cipline or excision. Our only judicial power in the 
case arises from the conflicting claims of the parties 



DECEMBER TERM, 1891. 338 

Nance v. Busby. 

to the church-property and the use of it. And these 
we must decide as we do all other civil contro- 
versies brought to this tribunal for ultimate decis- 
ion. We cannot decide who ought to be members 
of the church, nor whether the excommunicated 
have been justly or unjustly, regularly or irregu- 
larly cut oif from the body of the church. We 
must take the fact of expulsion as conclusive proof 
that the persons expelled are not now members of 
the repudiating church, for, whether right or wrong, 
the act of excommunication must, as to the fact 
. of membership, be law to this Court. For every 
judicial purpose in this case, therefore, we must 
consider the persons who were expelled by a vote 
of the church as no longer members of that church 
or entitled to any rights oi: privileges incidental 
to or resulting from membership therein. * * * 

"The judicial eye of the civil authority of this 
land of religious liberty cannot penetrate the veil 
of the church, nor can the arm of this Court 
either rend or touch that veil for the forbidden 
purpose of vindicating the alleged wrongs of the 
excluded members. When they became members 
they did so on the condition of continuing or not, 
as themselves and their church might determine. 
In that respect they voluntarily subjected them- 
selves to the ecclesiastical power, and cannot in- 
voke the supervision or control of that jurisdiction 
by this or any other civil tribunal. 

"Bnt the necessary consequence of the view we 
have taken of the proprietary or usufructuary rights 



834 N^ASHVILLE : 



Nance v. Busby. 



of the parties is that there can be no reversal of 
the decree on the errors assigned by the appellants. 
Having once associated themselves with many oth- 
ers, as an organized band of professing Christians, 
they thereby voluntarily subjected themselves to 
the disciplinary and even expulsive power of that 
body. The voice of the majority has prevailed 
against them. They have, by that fiat, ceased to 
be members of that association ; and, with the loss 
of their membership, they have lost all the priv- 
ileges and legal rights to which, as members, they 
were ever entitled. Their only remedy now is, 
therefore, in their own bosoms — in a consciousness 
of their own moral rectitude, and in the consolations 
of that religious faith and those Christian graces 
which, under all temporal trials, will ever sustain 
the faithful Christian and adorn the pathway of 
his earthly pilgrimage. Their expulsion ought not 
to brand them with 'immorality.' In this record 
there is no proof of immoral conduct in either 
the popular, the ethical, or the biblical sense. They 
were expelled for alleged non-conformity, and con- 
tumacy adjudged against . them, without a formal 
trial or hearing, by a dominant majority, as falli- 
ble perhaps as themselves. Self-doomed to the un- 
controlled will of a majority of a church selected 
by themselves, they can olStain no redress in this 
forum. If their sentence be unjust, the only ap- 
peal is to the omniscient Judge of all." 

The congregation to which complainants belonged 
was congregational and independent. It was a 



DECEMBER TERM, 1891. 335 

Nance v. Busby. 

pure democracy. The power of excommunication 
reposed in the majority of the members voting at 
any conference. From its action there was no 
appeal. This fact may be a defect in the organi- 
zation. It is not for us to say, nor for those 
affected by its judgments to complain. They vol- 
untarily, submitted themselves to the absolute power 
of a majority. They tacitly agreed to abide by 
and submit to such judgment. This church, when 
sitting in conference was a judicature. It may 
have erred in construing the usage and practice of 
the church to justify a proceeding for expulsion 
without notice to the accused of the charges, and 
without giving him opportunity to vindicate him- 
self. It, however, proceeded to adjudge excom- 
munication. Its act was the act of the church. 
Complainants thereafter ceased to be members of 
this church. We cannot restore their names to 
the roll, or by mandamus compel recognition as 
members by the church which has repudiated them. 
Not being members of this church, they are not 
beneficiaries under the conveyance by which the 
church holds its church. They have, therefore, no 
such status as enables them to question the use of 
that property by the defendants. 

The result is that, notwithstanding the force 
and effect of the verdict, the Chancellor should 
have dismissed the bill. His decree is therefore 
reversed. 

The bill will be dismissed and complainants will 
pay the costs. 



836 NASHVILLE : 



Nashville Trust Co. r*. Bank. 



Nashville Trust Co. v. Bank. 
{Nashville. Marcli 8, 1892.) 

1. Assignment, General. /fo7v asstgme takes. 

Under a general assignment for the benefit of creditors, the assignee 
takes the choses in action of his assignor, not as purchaser for value, 
but as a volunteer, and therefore subject to all the defenses and equities 
existing against them in the hands of the assignor. The assignee is 
the mere representative of the assignor and his estate, and stands in 
his shoes. {Post^ pp. 34 J ^ S4^') 

Cases cited and approved: 23 N. J. Law, 283; 2 V^ern., 428; 9 Ves., 
100; I Atk., 162; 10 Johns., 540; 2 Johns. Ch., 443. 

2. Equitable Set-off. Itisohency a s^tfficient ground for. Example. 

Insolvency alone of debtor affords sufficient ground for the application 
of the doctrine of equitable set-off. 

Example: An insolvent mercantile corporation made a general assign- 
ment of its assets for the benefit of its creditors. Among these assets 
was a bank deposit of $5,222.66. The assignor owed this bank 
$28,000, for which it had given its notes. These notes were not due 
at the date of the assignment. After the assignment had been per- 
fected, the bank, with knowledge of its existence, applied the deposit 
in its hands on the assignor's notes, claiming payment in full to that 
extent, and/n? rata on remainder of its debt. 

Held: A proper case for equitable set-off. The application of the de- 
posit by the bank to its notes on the assignor is approved. The fact 
that the notes were not due is deemed immaterial. {^Posi, pp. 347-334*) 

Cases cited and approved: Brazelton v. Brooks, 2 Head, 193; Hough v. 
Chaflin, 4 Sneed, 238; Gregory v. Hasbrook, i Tenn. Ch., 220; 
Edminson v. Baxter, 4 Hay., 112; Richardson v. Parker, 2 Swan, 
529; Moseby t'. Williamson, 5 Heis., 287; Comfort v. Patterson, 2 
Lea, 670; Machine Co. v. Zackary, 2 Tenn. Ch., 478; Catron v. 
Cross, 3 Heis., 584; Smith v. Mosby, 9 Heis., 501 ; Fields z/. Carney, 
4 Bax., 137; 26 Barb., 310; 15 N. Y. Supp., 892; 120 U. S., 506. 
129 U. S., 252. 



DECEMBER TERM, 1891. 337 

Nashville Trust Co. v. Bank. 

Same. Same. What assets must be ratably distributed. 

And the allowance of the equitable set-oflf in such case is not in conflict 
with the principle of equal and ratable distribution of the assignor's 
assets. I1ie balance due constitutes the assets for distribution. {Post^ 

PP' 354-357 '^ 
Cases cited and approved: Richardson v, Parker, 2, Swan, 529; Moseby 
V, Williamson, 5 Heis., 287; Comfort v, Patterson, 2 Lea, 670; 4 N. B. 
R., 689; Smith V, Mosby, 9 Heis., 501; McKenzie v, Schoffner, 8 
Bax., 408,' 6 /</., 71 ; 7 /</., 332; 2 Vern., 428; 23 N. J. Law, 283; 
I Paige, 444, 112; 17 Wall., 610. 

, Set-off. Right of exists, when. 

Although the creditor's claim against the assignor is not due at the date 
of the making of a general assignment, still the legal right of set-ofif 
can be enforced, even where assignor's assets are insufficient to pay 
all his debts, if, after such claim has fallen due, the assignee sues such 
creditor for a debt due the assignor's estate. {Post, pp. j^7, 35 S*) 

C6de construed: ? 3628 (M. & V.) ; ? 2918 (T. & S.). 

Case cited and approved: Keith v. Smith, i Swan, 92. 



FROM DAVIDSON. 



Appeal from the Chancery Court of Davidson 
County. Andrew Allison, Ch. 

East & Fogq, and J. C. McReynolds for Trust 
Co. 

Dickinson & Frazer for Bank. 

Jno. a. Pitts, Sp. J. The Connell-Hall-McLester 

Company, a Tennessee mercantile corporation, located 

at Nashville, executed a general assignment to the 

Nashville Trust Company, for the benefit of cred- 
22— 7 p 



838 NASHVILLE : 



Nashville Trust Co. v. Bank. 



itors, on June 4, 1891. 'The deed of assignment 
conveyed to the assignee all the property and as- 
sets belonging to the assignor company, schedules 
being annexed, under oath, specifying, among other 
things, all moneys on deposit in the Fourth Na- 
tional Bank, of Nashville. 

At the date of the assignment, the assignor 
company had on deposit, subject to its check, in 
said bank, $5,222.66, and the bank held its four 
notes for borrowed money, due as follows: One 
due July 3, 1891, for $10,000; one due July 17, 
1891, for $4,500; one due July 19, 1891, for $9,000; 
one due August 22, 1891, for $4,500. Making a 
total of $28,000. 

The bank, after the assignment was made and 
noted for registration, and on the same day it was 
made, with knowledge of the assignment, applied 
said deposit to the credit of the assignor upon its 
indebtedness to the bank on the above stated notes. 
Within three days after the assignment, the assignee 
drew its check upon the bank for the amount of 
the deposit, caused the same to be presented for 
payment, and payment was refused. The assignor 
is insolvent, and was insolvent at the date of the 
assignment, and will not pay its debts in full. 

On December 4, 1891, the assignee and the 
Fourth National Bank submitted an agreed case to 
the Chancery Court at Nashville for decision upon 
the foregoing facts — the assignee claiming, as stated 
in the agreed case, "that it had the right to col- 
lect the deposit, and that it still has such right; 



DECEMBER TERM, 1891. 839 

Nashville Trust Co. v. Bank. 

or, if it has not this right, that in the pro rata 
distribution of the proceeds of the assets among 
the creditors of the Connell-Hall-McLester Com- 
pany, it has the . right to charge said bank with 
the sum so on deposit and appropriated as so 
much cash received on its fro rata share of said 
proceeds upon its debt of $28,000;" and the bank 
claiming "that it had the right to appropriate said 
deposit in payment on said notes, prove its debt 
for the balance, and collect its pro rata share of 
the trust fund on said balance as other creditors, 
and that it now has such right." 

These questions were submitted for decision, 
with the agreement that costs should be paid by 
the losing party. 

The Chancellor held for the defendant, the bank, 
grounding his decision upon the doctrine of equi- 
table set-oft', and the complainant has appealed. 

Two questions are now presented for decision. 
The first is, whether the doctrine of equitable 
set-off' applied, and gave to the bank, immediately 
upon the assignment being made and the insolv- 
ency of the assignor established, the right to have 
the deposit credited upon or allowed as a set-oft' 
against the indebtedness of the assignor, not then 
due. 

The complainant's counsel argues with much 
force and plausibility that the mere fact that one 
of the parties to independent cross-indebtedness is 
insolvent constitutes no ground for equitable set-oft'; 
that some connection of dependence or "mutual 



340 NASHVILLE : 



Nashville Trust Co. r. Bank. 



credit," in addition to insolvency, is essential ; that 
more especially is this so where the indebtedness 
of one of the parties is not due, and that, too, of 
the party who is seeking to obtain the set-off; that 
to apply the doctrine of set-off to such a case 
would be to allow a party to collect a debt before 
it is due, without the consent of his debtor, and 
thus violate the contract which the parties have 
made; and that, in this case, such a result would 
give the bank a preference over other creditors of 
the assignor, and violate the statute which provides 
for the equal pro rata distribution of the assets of 
insolvent debtors under general assignment, as well 
as the like statutory provisions in regard to insolv- 
ent corporations. 

On the other hand, it is argued with equal force 
and plausibility for defendant, that insolvency is of 
itself a sufficient ground for equitable set-off, with- 
out any connection or "mutual credit" between 
the debts or parties; that connection and insolv- 
ency are separate and distinct grounds for such 
relief, each being alone sufficient; that where in- 
solvency exists, it makes no difference that the 
indebtedness on one side is not due, nor which 
party is insolvfent — whether the party seeking the 
set-off or the party resisting it; that under the 
statutes providing for the equal pro rata distribu- 
tion of the assets of insolvent persons and corpo- 
rations, the assets of the insolvent, in respect to 
clioses in action, are only the balances due the in- 
solvent estate after deducting all proper credits, 



DECEMBER TERM, 1891. 341 

Nashville Trust Co. v. Bank. 

counter-claims, and set-oiFs, as its liabilities are 
only the balances due from it, ascertained in like 
manner, and, therefore, that to allow the set-off 
claimed in this case is not to disturb^ but to pre- 
serve and enforce^ equality among creditors; and 
that to refuse it would be to give other creditors 
a preference over the bank, and work injustice to 
the latter, by compelling it to pay in full what it 
owes to the insolvent and take a. pro rata on 
what the insolvent owes it. 

The second question is — the indebtedness on 
both sides being duc/W^hen the agreed case was 
filed — whether the bank has the legal right of 
6et*off. 

* On this question, in addition to the contentions 
already suggested, it is insisted for complainant 
that the rights of the parties were fixed at the 
• date of the assignment, and the bank having no 
right to set-ofF at that date, it has not such right 
now; that the lapse of time did not enlarge de- 
fendant's right in this respect; and that the as- 
signee represents the creditors of the assignor, and 
not the assignor only, and, therefore, that the as- 
signee is not to be regarded as standing in the 
shoes of the assignor simply. 

On the other hand, it is insisted for defendant 
that the assignee takes not only as a volunteer, 
subject to all the equities existing against the as- ' 
signor, and not as a purchaser for value, but also 
as the personal representative of the assignor, and 
stands for and in the place of the assignor in all 



342 XASHVILLE: 



Nashville Trust Co. v. Bank. 



respects, except as to personal liability; that the 
agreed case is, in eftect, a suit to recover the de- 
posit by the Connell-Hall-McLester Company, by 
its assignee and personal representative; and that 
the debts being mutual and all due, the bank has 
the legal right of set-off to the extent of the de- 
posit. 

Opposed as they are to each other, the positions 
of counsel are each supported by apparently well- 
condidered cases on both of the general questions 
stated; but no adjudication of this Court upon a 
similar state of facts has been cited, nor is the 
Court aware of any case in this State in which 
the precise questions here raised have been decided. 
The adjudged cases in this country and in England, 
and the text-books founded upon them, are in hope- 
less and irreconcilable conflict on many of the 
points involved. Any effort to reconcile them • 
would be utterly futile. There is no touchstone 
of reason that will distinguish and harmonize them 
upon any general principle applicable to all of 
them, for their antagonism is not apparent simply, 
but real and fundamental. They but furnish one 
of the many illustrations of that diversity of judg- 
ment which is inherent in the minds of men, 
which often, out of substantially similar raw ma- 
terials and general conditions, has founded and 
'built up dissimilar systems of jurisprudence, and 
which, too, often proves a delusion and a snare to 
the worshiper of mere precedent. 

W'e must, therefore, look for guidance to the 



DECEMBER TERM, 1891. 343 

Nashville Trust Co. v. Bank. 

policy of our own State on the general subject, 
and to the principles involved which appear to be 
sanctioned by reason and the weight of authority. 
And, first of all, it must be remembered that the 
doctrine of set-off, whether legal or equitable, is 
essentially a doctrine of equity. It was that nat- 
ural justice and equity which dictates that the 
demands of parties mutually indebted should be 
set off against each other, and only the balance 
recovered, that gave birth to the idea of accom- 
plishing that result in a judicial proceeding. The 
common law, for simplicity of procedure, deter- 
mined otherwise, and held that each claim must 
be prosecuted separately. " The natural sense of 
mankind," says Lord Mansfield, "was first shocked 
at this in the case of bankrupts; and* it was pro- 
vided for by 4 Ann, C. 17, Sec. 11, and 5 Geo. 
II.,. C. 30, Sec. 28." Green v. Farmer^ 4 Burrow, 
2214, 2220, cited in 2 Story's Eq. Jur., Sec. 1438. 

" In pursuance of these old statutes, and of the 
dictates of equity," says the Supreme Court of the 
United States, in Carr v. Hamilton^ 129 U. S., 255> 
256, "the principles of set-off between mutual debts 
and credits has for nearly two centuries past been 
adopted in the English bankrupt laws, and has 
always . prevailed in our own whenever we have 
had such a law in force on our statute-book; and 
it mattered not whether the debt was due at the 
time of bankruptcy or not." Citing authorities. 

The jurisdiction of Courts of Equity over the 
subject of set-off was exercised before there was 



344 NASHVILLE : 



Nashville Trust Co. v. Bank. 



any statute upon the subject. Hatckins v. Freeman, 
2 Eq. Cas. Abr., 10; Chapman v. Derby ^ 2 Vern., 
117. And has often beep applied in cases not 
within the statutes. Williams v. Davies, 2 Sim., 
461 ; JEx parte Prescott, 1 Atk., 331 ; Lord Louns- 
borough v. Jones^ 1 P. W., 326; Green v. Darling, 
5 Mo8., 207. 

By the civil law, from which the great body 
of our system of equity comes, a cross-debt was, 
by mere operation of law, without any act of the 
party, extinguished. It was treated as an absolute 
payment. Courts of Equity in this country, while 
not going so far, have accomplished the same 
result in numerous cases, by granting perpetual 
injunctions against judgments in favor of insolvent 
persons who were indebted in larger amounts to 
the judgment debtor. Brazelton v. Brooks, 2 Head, 
193; Hough v. Chaffin, 4 Sneed, 238. And in other 
cases where, on account of the non-residence of 
the judgment plaintiff, or for other reason, the 
defendant could not save the demand due himself 
except by setting it off against the judgment. 
Gregory v. Hasbrook,. 1 Tenn. Ch., 220; Edminson 
V. Baxter, 4 Hay., 112; Waterman on Set-off, Sec. 
431. The Court, in all such cases, is governed, 
not by the statute of set-off, but by the general 
principles of equity. Jeffries v. Evans, 43 Am. 
Dec, 158. And the general principle of equitable 
set-off seems to be, that it will be allowed where 
the party claiming it appears in good conscience 
to be entitled to it, and no superior equity in 



DECEMBER TERM, 1891. 345 

Nashville Trust Co. v. Bank. 

favor of the party resisting it will b^ thereby 
defeated. Waterman on Set-off, Sec. 439. The 
same author says: "The natural equity to have 
mutual but unconnected demands between two par- 
ties who have been dealing with each other set off, 
is, as a general, rule, superior to the claim of any 
other creditor who has not dealt with the insolvent 
upon the faith of the specific fund against which 
the right of set-off is claimed." Sec. 438. 

With these general principles in view, we pro- 
ceed to examine the reasons urged in argument for 
and against the application of the doctrine of equi- 
table set-off in this case. 

And, firsts as to the capacity in which the com- 
plainant stands before the Court. Is the Nashville 
Trust Company to be regarded as standing in the 
shoes of its assignor — the Council - Hall - McLester 
Company — or upon different and higher ground? 

On this point the authorities are not in har- 
mony; but we are of opinion that reason and 
the Weight of authority support the view that , an 
assignee for the benefit of creditors takes the choses 
in action of his assignor, not as a purchaser for 
value, but as a volunteer, and therefore subject to 
all the defenses and equities existing against them 
in the hands of the assignor; and not only so, 
but that he holds as the representative of the as- 
signor and his estate, and in this respect is to be 
distinguished from a particular assignee holding for 
himself^ either as volunteer or purchaser. Burrell 
on Assignments, Sec. 391; 3 Zab. (N". J.), 283; 



846 NASHVILLE : 



Nashville Trust Co. v. Bank. 



Receivers V. Paterson Gas-light Co,, 2 Vern., 428, 
note 1; Mitford v. Mitford, 9 Ves., 100; Broion v. 
Heafhcote^ 1 Atk., 162; Classon v. Morris^ 10 Johns., 
540; Murray v. Lylburii, 2 Johns. Ch., 443, He 
receives the legal title, not for himself, but in trust 
to collect and disburse to creditors. All rights of 
action of the assignor pass to him for this pur- 
pose; and to all suits against the assignor's estate, 
and which are to affect the assets in his hands, he 
must be a party. This is the estate, and these 
are the functions of an ordinary administrator or 
personal representative. It is frequently said of 
such an assignee, that he represents the creditors, 
as it is said of an administrator, where the estate 
is insolvent, that he represents creditors, and where 
it is solvent, that he represents distributees; and 
in the sense in which it is so said, it is true. 
But by this is manifestly meant no more than that 
the representative's ultimate accountability is to the 
classes of persons who stand to him in the rela- 
tion of beneficiaries — who are ultimately to receive 
the fruits of the trust he is administering — whether 
it be the estate of a living or dead person, or that 
of a corporation. His right to maintain suits upon 
the choses in action passed to him from the as- 
signor by the assignment obviously rests upon the 
fact that he represents the assignor, in whom were 
vested originally the title and right of action. 
This title and this right of action were never 
vested in the creditors, and did not come 40 the 
assignee from them. 



DECEMBER TERM, 1891. 847 

Nashville Trust Co. v. Bank. 

Secondly^ as to insolvency. Is insolvency of itself 
a sufficient ground for the application of equitable 
set-off? 

"It is deducible from the general scope of the 
authorities," says Mr. Waterman, "that insolvency 
has long been recognized as a distinct equitable 
ground of set-off." Waterman on Set-off, Sec. 432. 

Numerous authorities are cited by the learned 
author, but it is not deemed useful or necessary to 
review them, as this Court has repeatedly so held. 
Brazelton v. Brooks j 2 Head, 193; Hough v. Chaffin, 
4 Sneed, 288; Gregory v. Hasbrook^ 1 Tenn. Ch., 
220; Edminson v. Baxter^ 4 Hay., 112; Richardson 
v. Parker^ 2 Swan, 529; Mosehy v. Williamson^ 5 
Heis., 287; Comfort v. Patterson, 2 Lea, 670; Ho7oe 
Machine Co. v. Zachary, 2 Tenn. Ch., 478; Cat- 
ron V. Cross, 3 Heis., 584; Smith v. Mosby, 9 Heis., 
501; Fields v. Carney, 4 Bax., 137. 

Thirdly^ as to the fact' that the indebtedness on 
one side is not due when the set-off is claimed. 

It seems to be conceded by counsel for com- 
plainant that the fact that the indebtedness from 
the party claiming the right of set-off is not due 
would constitute no obstacle, as he might be al- 
lowed, if he chose, to expedite payment of a debt 
due from himself without doing any injustice to 
the opposite party. But it is earnestly insisted 
that it is quite different where it is the debt 
against which the set-off is claimed that is not due ; 
that, in such case, to allow the set-off, and thereby 
compel payment of a debt not due without the 



348 NASHVILLE : 



Nashville Trust Co. v. Bank. 



consent of the debtor, is to violate the contract of 
the parties, and work injustice to the debtor whose 
demand is thus anticipated and collected before 
maturity. 

The argument is persuasive, and not without 
the support of respectable authority. Spaulding v. 
Backus, 122 Mass., 553 (S. C, 23 Am. Rep., 391); 
Harmon v. Williams, 34 X. J. Eq., 255 (S. C, 38 
Am. Rep., 378) ; Jordan v. National Shoe and 
Leather Bank, 74 N. Y., 467 (S. C, 30 Am. Rep., 
319) ; Lockwood v. Beckwith, 6 Mich., 168 (S. C, 
72 Am. Dec, 69); and Watermsln on Set-off, Sees. 
131, 132, all seem to support this position, as do 
other cases not cited. The most of these and like 
cases seem to be, and many of them are, expressly 
based on the principle stated and illustrated in 
Potheir on Obligations, 590, as follows: 

"I am your debtor for six pipes of wine of a 
particular vintage. You are my debtor for six 
pipes of wine generally. I may demand the six 
particular pipes, and, therefore, you cannot offset 
the general debt for six pipes; but / may offset 
my particular pipes, if I please, against yours, be- 
cause I could turn them out to you in* payment 
of the general debt." 

It is obvious that this illustration does not in- 
volve any principle of equitable set-off. It is only 
the statement of the general principle, applicable 
not only to the law of set-off, but to contracts as 
well, that an obligation payable in one commodity 
cannot be paid in another without the consent of 



DECEMBER TERM, 1891. 849 

Nashville Trust Co. v. Bank. 

 - - * - 

the payee. At most, as applied to the case in 
hand, it means that a debtor whose debt is due 
has no right, nothing more appearing, to set off 
against it a debt in his favor not due. But this 
is only stating a general rule of legal set-bff every- 
where conceded. The fact of insolvency of one 
of the parties is not involved. In the absence of 
insolvency or some equivalent equity, it will not 
be anywhere contended that a debt not due can 
be set off against a debt that is due, any more 
than that six pipes of wine generally can be set 
off against six particular pipes of wine. 

The case of Spaiilding v. Backus, supra, relied 
on for the distinction under consideration, is not 
strictly an authority for the position ; for, while 
the learned Court does approve the distinction that 
a party cannot anticipate payment of. an unma- 
tured debt to himself by setting off against it a 
debt due from himself presently payable, notwith- 
standing the insolvency of the complainant, the 
suit in that case was by or for the benefit of an 
assignee by purchase, and the real question was 
whether a debt owing by the defendant to the 
assignor at the date of th« assignment, though not 
then due, was to be regarded as an equity so 
attached to the assigned debt as to carry with it 
the right •of set-off as against the assignee with 
notice of assignor's 'insolvency. The holding in 
the negative is not necessarily inconsistent with 
the right of set-off as between the original par- 
ties, and appears entirely consistent with the de- 



350 NASHVILLE : 



Nashville Trust Co. v. Bank. 



cisions of this Court that a right of set-off, to 
be BO attached to the debt as to be available 
against it in the hands of an assignee for value, 
must be complete and perfect at the date of the 
assignmenft. Gatewood v. Denton^ 3 Head, 381 ; 
Litterer v. Berry ^ 4 Lea, 193; Catron v. Cross^ 3 
Heis., 581. 

Lockioood V. Beckwithy Jordan v. National Shoe 
and Leather Banky and Hannon v. Williams do 
fairly hold the proposition contended for by com- 
" plainant's counsel. The effect of the sections cited 
from Waterman on Set-off is, that the set-off Will 
be allowed where the debt not due is in favor of 
the. party against whom the right of set-off is 
asserted. It is only by implication that the learned 
author can be treated as against the right in cases 
like the present. 

We cannot agree with these authorities, either 
in their reasoning or result. 

The question is, Assuming the insolvency of the 
party owing the unmatured debt, can his debtor, 
when sued by the insolvent on a debt which is 
due, set off against it in equity the unmatured 
debt because of the insolvency? We are of opin- 
ion that both reason and the weight of authority 
answer in the affirmative. 

In connection with the general pftnciple of 
equity before alluded to, that a set-off will be 
allowed where the party appears in good conscience 
to be entitled to it, and where no opposing equal 
or superior equity will be defeated — and we are 



DECEMBER TERM, 1891. 351 

> 

Nashville Trust Co. v. Bank. 

treating the case now upon the idea that it is 
only the insolvent himself that is resisting — it must 
be remembered that it is only where, for some 
reason, the law cannot avail the party that equity 
intervenes at all. If both parties were solvent, 
80 that both debts might ultimately be collected, 
the law would afford adequate relief, and no in- 
justice would be wrought to either party. The 
one could not sufi'er by having to pay his own 
debt according to his contract, if he could ulti- 
mately dompel the other to pay his debt according 
to his contract. But it is this very fact — that if 
the one pays the debt due from him, he cannot 
compel payment of the debt due to him, and will 
thereby suffer irreparable loss, and his inability to 
protect himself by set-off at law because his debt 
is not due — that creates his equity, and the neces- 
sity for equitable relief. Does it lie in the mouth 
of an insolvent to say that his contract is violated, 
and thereby defeat so manifest an equity, when it 
is apparent that he cannot himself perform that 
contract? Should a Court of conscience be so 
over-scrupulous of the rights of one party to a con- 
tract as to refuse to permit a slight variance even 
as to him, when it can plainly see that thereby 
it will wholly destroy the contract as to the other 
party ? 

Technicalities are not to be so sweeping in their 
consequences. This Court looks to the substance 
and not to the shadow of things. It is the very 
fact that the contract cannot be performed literally 



362 NASHVILLE : 



Nashville Trust Co. ?». Bank. 



as made, that calls up(^n the Court, ex aequo et 
bono, to compel such substantial performance as is 
possible. 

But it will be found, upon examination, that 
this objection may be urged with equal force in 
almost if not every case where the doctrine of 
equitable set-off has been applied. Take, for ex- 
ample, the case of a judgment on the one side 
and a simple contract debt on the other. The 
judgment plaintiff is entitled to immediate execution 
and to cpllect his money at once. He does not 
have to await the law's delay and the expense of 
litigation. He has not only the right to demand 
his money, but to compel payment at once by final 
process before the defendant can possibly obtain 
judgment and place himself on equal footing in 
respect to the debt due him. He must await the 
delay of legal proceedings, while the plaintiff in 
the judgment may, in the meantime, in the exer- 
cise of not only a contract right, but a contract 
right sanctioned by the final judgment of the 
Court, proceed to collection at once. And yet, it 
has never been considered that this right of a judg- 
ment plaintiff, if he is insolvent, stands in the way 
of equitable relief to the other party by injunc- 
tion and set-off, although it cannot be said that 
there is here any less violation of the clear legal 
right than there is in setting off a debt not due 
against one that is due and payable. 

The right of set-off in such and like cases is 
sanctioned by many authorities. 



DECEMBER TERM, 1891. 353 

Nashville Trust Co. v. Bank. 

In Jonts V. RobinsoHy 26 Barb., 310, approved 
in 2 Waterman on Corp., Sec. 371, it appeared 
that Jones had to his credit in bank a deposit of 
$924 at the time the bank failed and a receiver 
was appointed; and the bank held Jones' note for 
$391.43, which matured three days after the receiver 
was appointed. Held, set-off proper. 

In Fra v. Wickham, Sup. Ct., N. Y., Oct., 1891, 
reported in New York Supplement, 892, the right 
of set-off was upheld in a case like this, except 
that the parties were natural persons instead of 
corporations: 

In Schuler v. Israel, 120 U. S., 506, the Supreme 
Court of the United States approves the same doc- 
trine in a garnishment proceeding, the syllabus, 
fairly supported by the opinion, on this point 
being: "A. garnishee has a right to set up any 
defense against the attachment process which he 
could have done against the debtor in the partic- 
ular action; and if the debtor be insolvent, and 
owes the garnishee on a note not due, for which 
he has no^ sufficient security, he is not bound to 
risk the loss of his debt in answer to the gar- 
nishee process." The facts appearing in the answer 
of the garnishee, he was discharged. 

In Carr v. Hamilton, 129 U. S., 252, the same 
doctrine was applied between an insolvent life in- 
surance company and the holder of an unmatured 
endowment policy, who was also indebted to the 
company for a loan, past due at the date of in- 
solvency. 

23—7 p 



354 NASHVILLE : 



Nashville Trust Co. v. Bank. 



In Kentucky Flour Company^s Assignee v. JUer- 
chants^ Notionql JBank, S. W. Rep., Vol. 13, p. 
910, the doctrine was applied by the Supreme 
Court of Kentucky in a case precisely similar to 
this. Referring to the particular question now 
under consideration, the Court in that case say: 

"It is unquestionably the law that, as between 
individuals, the right of equitable set-off exists, al- 
though the debt had not matured at the time of 
the 'insolvency. Ordinarily, of course, a debt not 
due cannot be set off against one already due. 
To allow it would be to change the contract and 
advance the time of payment. But where the 
party asserting the due debt is a non-resident or 
becomes insolvent, then either of these conditions, 
ipso facto, gives to the other party the right of 
equitable set-off, although his debt had not ma- 
tured when the debtor became insolvent or the 
condition arose giving the right of equitable set-off." 

We conclude, therefore, that insolvency is a 
good ground of equitable set-off, even where the 
indebtedness on one side is not due, and that it 
makes no difference in which party's favor is the 
unmatured debt. The supposed hardship or injus- 
tice resulting from the anticipation of the unma- 
tured debt may and should be wholly obviated by 
discounting it or adding interest to the due debt 
for the unexpired time of the debt not due, and 
in this way equalize the interest. 

Fourthly, as to the effect of the statutes pro- 
viding for the equal and ratable distribution among 



DECEMBER TERM, 1891. 355 



Nashville Trust Co. v. Bank. 



creditors of the assets of IqsoI vents under general 
assignments and of insolvent corporations. 

Without elaborating this question, it is sufficient 
to say we are of opinion that the position of de- 
fendant is the correct one. Under a similar stat- 
ute in reference to the estates of insolvent de- 
ceased persons, this Court held, in Richardson v. 
Parker^ 3 Swan, 529, that it is only the balance 
remaining in favor of the estate after all just set- 
tlements with debtors that goes into the fund for 
distribution. These balances are the " assets " to 
which the statute refers. In that case a set-off 
was allowed to the debtor of an insolvent estate 
in a suit by the administrator against him ; and 
although it was a case of legal set-off purely, we 
are of opinion the principle announced applies 
equally to the case of equitable set-off. The Court 
has, in feet, shown a disposition to extend the 
principle to every case. It was so expressly ex- 
tended to insolvent corporations in Moseby v. Will- 
iayyisoHj 5 Heis., 287, and to a general assignment 
by an insolvent bank in Comfort v. Patterson^ 2 
Lea, 670. It has also recognized that the same 
principle is applicable to the estates of bankrupts 
under national bankrupt laws. 2 Swan, 530; 5 
Heis., 287; 2 Tenn. Ch., 479, and cases there 
cited. And the principle has been uniformly so 
applied by the bankrupt Courts. Drake v. Rollo^ 
4 Nat. Bankrupt Reg., 689; In re City Bank of 
Savings^ 6 Jd., 71 ; In re H. Petrie, 7 Jrf., 332 ; 
2 Vern., 428, note 1. It is applicable to receiv- 



356 NASHVILLE : 



Nashville Trust Co. z'. Bank. 



ere of corporations under State statutes. Receivers 
V. Paterson Gas-light Co.^ 8 Zab. (N. J.), 283; 
Miller v. Receivers of Pranklin Bank^ 1 Paige, 444; 
McLaren v. Pennington, 1 Paige, 112. Also to 
receivers of insolvent national banks. Piatt v. 
Bently (K Y.), 11 Am. Law Reg., N. S., 171; 
Wait's Ins. Corp., Sec. 549. And this,^ too, al- 
though the law of set-off is held not to have 
been enlarged by either the bankrupt or national 
bank acts. Sawyer v. Hoag, Assignee, U. S. Sup. 
Ct., 1873, 9 Nat. Bankrupt Reg., 145; Piatt v. 
Bently, supra. 

In these and numerous like cases the Courts 
proceed upon the idea so well expressed by the 
New Jersey Court in Receivers v. Paterson Gas- 
light Co.: 

" The object of the Act is to do equal justice 
to all the creditors; and equality is tquity. But 
equality of what and among whom? Clearly of 
the assets of the bank among the creditors of the 
bank. In cases of cross-indebtedness, the assets of 
the bank consist only of the balance of the accounts. 
That is all the fund which the bank itself would 
have had to satisfy its creditors in case no re- 
ceiver had been appointed. And there is no equal- 
ity and no equity in putting a debtor of the bank 
who has a just and legal set-off as against the 
corporation, in a icorse position, and the creditors 
in a better position, by the failure of the bank and 
the appointment of receivers." 3 Zab., 294, 295. 

In that case, although the debt to the bank 



DECEMBER TERM, 1891. 357 

• 

Nashville Trust Co. v. Bank. 

was not due at the time of failure and the aj)- 
pointment of receivers, the defendant was allowed, 
in a suit brought after maturity, to set it oft' 
against a debt due by him to the bank at the date 
of failure. 

These considerations and authorities are equally 
conclusive against the argument of complainant 
that the rights of the parties were Jixed at the 
date of the assignment. It is true they were 
fixed in the sense that a debtor of the assignor 
could not thereafter purchase or acquire a debt 
against the assignor and set it ofi* against his own 
debt to the assignor. • McGbmis v. Allen, 2 Swan, 
645. Unless the debt was held at the date of 
assured insolvency, in case of a corporation, or at 
the date of the assignment of an insolvent debtor 
or the death of an insolvent decedent, it cannot 
be set oft". Id.; 5 Heis., 287; 2 Swan, 529; 9 
Heis., 501, 506; 8 Bax., 408. If the estate be 
solvent, the set-oft' will be allowed, although ac- 
quired after the death of plaintiff's intestate. 2 
Swan, 645. 

The second question presented by the agreed 
case is, whether the legal right of set-off existed 
when the suit was commenced. 

The indebtedness on both sides being then due, 
and mutual under the rules herein announced, it 
would seem that the only question remaining is, 
whether the agreed case is to be treated as in 
effect a suit to recover the deposit. 

We are of opinion that it must be so treated. 



358 NASHVILLE : 



Nashville Trust Co. v. Bank. 



We do not .so hold simply because the assignee 
appears as complainant on the record and in the 
agreed statement. That is a circumstance, it is 
true; and the case being a .controversy between 
parties, one or the other must be regarded as the 
actor or complainant. Looking to the substance 
. of the controversy and relief sought, it is seen 
that the assignee asserts the right to recover the 
deposit, in the first instance, or, if not, then to 
have the Court to declare its right to charge up 
the amount of the deposit to the bank as so much 
cash paid on its pro rata^ which is manifestly the 
same thing, as the statement shows the bank will 
be entitled to receive more than that amount in 
any event. On the other hand, the bank is seek- 
ing no decree at the hands of the Court, further 
than to have declared valid its previous act apply- 
ing the deposit as a payment on the notes, or its 
right now to have it so applied — either right being 
sufficient to repel the assignee. We think, there- 
fore, that the case is, in effect, a suit by the 
assignee to recover the deposit, commenced on De- 
cember 4, 1891 ; and, therefore, that the Chancel- 
lor's decree, in its result, is supported by the 
bank's legal as well as equitable right of set-off", 
the original equitable right having ripened - into 
and become a legal one before the suit was com- 
menced. Keith v. Smith, 1 Swan, 92; Code (M. 
& v.), §3628, subsec. 1. 

The Chancellor's decree is, therefore, affirmed, 
and the assignee, out of the assets in its hands, 
will pay costs. 



DECEMBER TERM, 1891. 359 



Hawkins v. Alexander. 



Hawkins v, Alexander. 
{Nashville. March 17, 1892.) 

1. Forcible Entry and Detainer. Bond for rents not required upon 
^ defendants appeal, when. 

An unsuccessful defendant, who appeals from a justice's judgment in 
forcible entry and detainer, and is permitted to remain in possession, 
cannot be required to give bond for rents of the land accruing during 
the pendency of the appealed case in the Circuit Court. The 
plain tiflPs remedy is to give bond for rents himself, and take and 
hold possession pending the appeal. 

Code construed:, §?4090, 4092 (M. & V.) ; §3360 (T. & S.). 

Acts construed: Acts 1869-70, Ch. 64; Acts 1871, Ch. 75. 

Cases cited and approved; Norton z\ Whitesides, 5 Hum., 381 ; Lynn 
V, Manufacturing Co., 8 Lea, 29; McGhee v, Grady, 12 Lea, 92. 

Aliter, where case is removed to Circuit Court by certiorari, or taken 
from Circuit to Supreme Court by appeal. 

(See Code, §4099 (M. & V.), and Acts 1879, Ch. 85.) 

2. Same. Same, Judgment for rents erroneous. 

And judgment of the Circuit Court for rents given upon such bond, if 
improperly required, is erroneous and reversible. 

Cases cited and approved: Ladd v, Riggle, 6 Heis., 620 j Sherrill v, 
Madry, 6 Lea, 231. 



FROM FRANKLIN. 



Appeal in error from Circuit Court of Franklin 
County. M. D. Smallman, J. 



860 NASHVILLE : 



Hawkins v. Alexander. 



Action of unlawful detainer by J. R. Hawkins 
against Alexander and Brazelton. From judgment 
before the Justice of the Peace in favor of the 
plaintiff, the defendants appealed, and remained in 
possession. 

In the Circuit Court the defendants were re- 
quired to give bond to cover rents that should 
accrue pending the appeal. 

Defendants were again unsuccessful in the Circuit 
Court, and judgment entered against them and their 
sureties upon their bond. Defendants appealed. 

Geo. E. Banks for Hawkins. 

EsTELL & Alexander for Alexander. 

LuRTON, J. This is an action of unlawful de- 
tainer begun before a justice. There was judg- 
ments in favor of the plaintiff, from which the de- 
fendants appealed to the Circuit Court. Pending 
the appeal, defendants were suffered to remain in 
possession, the plaintiff not choosing to avail him- 
self of his right to sue out a writ of possession, 
which he might have done, notwithstanding the ap- 
peal, upon giving the bonds required by the statute. 
Code (M. & v.), § 4092. 

Defendants had executed a bond, upon obtaining 
this appeal, in the sum of $250, conditioned, upon 
failure to prosecute successfully, to pay all costs 
and damages, and to abide by and perform the 
judgment of the Court. 



DECEMBER TERM, 1891. 361 

Hawkins v, Alexander. 

At the April Term of the Circuit Court the 
defendants, under order of the Court, executed an- 
other bond to secure rents pending appeal. At 
the succeeding term they dismissed their appeal, 
whereupon the court entered up judgment upon 
this latter bond for the value of the rents pending 
the appeal. From this judgment for rents they 
have appealed. Under § 3360, Code of 1858, the 
defendant, upon appealing from a judgment against 
him in an action of this kind, was required to 
give a bond, " as in the case of a certiorari^'' in 
double the value of one year's rent, conditioned 
to pay all costs and damages. Under that pro- 
vision an appeal in forma pauperis did not lie. 
Norton v. WhitesideSj 5 Hum., 381. 

The bond was intended to secure rents pending 
the appeal, and was the only protection the plaint- 
iflf had against a frivolous appeal. But by the 
subsequent Acts of 1869-'70, Ch. 64, and 1871, 
Ch. 75, carried into the compilation of Milliken 
and Vertrees at §§ 4090 and 4092, the • successful 
plaintiff was given the right to sue out and have 
executed a writ of possession, upon giving bond in 
double the value of one year's rent, conditioned to 
pay all costs and damages accruing from the wrong- 
ful suing out of the writ. The effect of these 
Acts has been to allow the defendant to appeal in 
such cases, upon giving- ordinary cost-bond or upon 
the pauper's oath. This was expressly so ruled in 
Lynn v. Tellico Manufacturing Company j 8 Lea, 29; 
and approved in McGhee v. Grady ^ 12 Lea, 92. 



862 NASHVILLE : 



Hawkins v. Alexander. 



There was therefore no authority for the re- 
quirement of the bond to secure rents. If the 
plain tift' suflfered the defendant to remain in pos- 
session after the judgment of the Justice, he did 
so at the risk of the loss of his rent, for he can 
look only to his personal action for rents after re- 
covery of possession. The defendant in such a 
judgment by a Justice can only secure his pos- 
session pending further litigation by suing out writs 
of certiorari and supersedeas^ and entering into bond 
to secure costs and rents. Code (M. & V.), §§ 4093, 
4094. Or if the judgment of the Circuit Court 
be adverse to him, he can remain in possession 
by executing bond to secure rents pending appeal 
to this Court, as required by the Act of 1879, 
Ch. 85, and Code (M. & V.), § 4099. Notwithstand- 
ing defendants gave bond to secure rents pending 
appeal to the Circuit Court, there was no jurisdic- 
tion to render judgment for such rents. A similar 
ruling was made by this Court before the Act of 
1879, Ch.- 85, in regard to a like bond made in 
the Circuit Court to secure rents pending appeal to 
this Court. Ladd v. Biggie, 6 Heis., 620; Sher- 
rill V. Mady, 6 Lea, 231. 

The result is, that the judgment for rents pend- 
ing appeal was erroneous and must be reversed. 
There will be judgment here against Alexander & 
Brazelton for the costs of the Justice and of the 
Circuit Court, and judgment against Hawkins for 
the costs of this Court. 



DECEMBER TERM, 1891. 363 



Simmons v. Taylor. 



Simmons v. Taylor. 
{Nashville. March 19, 1892.) 

1. Forcible Entry and Detainer. Recovery of rents upon certiorari 

and supersedeas bond, where had. 

Upon removal of a forcible entry and detainer case, by an unsuccessful 
defendant, from the Justice's Court to the Circuit Court by certiorari 
and supersedeas, he is required to give bond with sureties "of sufficient 
amount to cover, besides costs and damages, the value of the rents of 
the premises during the litigation." And if upon the trial in the 
Circuit Court the plaintiff recovers the land, the statute provides that 
the jury shall "ascertain and find the value of the rents during the 
time the plaintiff has been kept out of possession, and the Court shall 
give judgment against the defendant and his sureties accordingly.*' 

Held: The statute is mandatory, and that the remedy upon the bond 
for rents therein provided is exclusive. The sureties on the bond 
cannot be held for rents in a separate suit, but only in the forcible 
entry and detainer case. 

Code construed: gg 4093, 4094 (M. & V.) ; §§ 3373^7, 3363 (T. & S.). 

Case cited and approved; Weigand v. Malatesta, 6 Cold., 366. 

Case cited and distinguished: White v. Bowman, 10 Lea, 55. 

2. Res Adjudicata. 

And therefore the judgment in the forcible entry and detainer case is 
res adjudicata as to the liability of the sureties on the bond for rents, 
and a complete bar to a subsequent suit upon that bond, although the 
matter of rents was not in fact considered on the trial of the forcible 
entry and detainer case, and the judgment in that case is silent as to 
rents. 



FROM "FRANKLIN. 



Appeal in error from Circuit Court of Franklin 
County. M. D. Smallman, J. 



364  NASHVILLE : 



Simmons ?'. Taylor. 



J. II. Smith for Simmons. 

James Turnby for Taylor. 

Caldwell, J. This is an action on a certiorari 
and supersedeas bond. 

Dick Taylor rented a house and lot in Winches- 
ter to Scott Davis. After the expiration of the 
contract, he commenced an action of unlawful de- 
tainer before a Justice of the Peace to recover pos- 
session of the property. The Magistrate rendered 
judgment in his favor, and awarded a writ of pos- 
session. Thereupon Davis filed his petition in the 
Circuit Court, and . obtained writs of certiorari and 
supersedeas^ executing ^proper bond, with John Sim- 
mons as surety thereon. The case was tried be- 
fore Court and jury, resulting in a verdict and 
judgment in favor of Taylor. 

The present action was brought before a Justice 
of the Peace, upon the certiorari and supersedeas 
bond executed in that case, to recover the rental 
value of the house and lot during the pendency of 
that suit in the Circuit Court. The Magistrate's 
judgment was adverse to Taylor, and he appealed 
to the Circuit Court. There verdict and judgment 
were in Taylor's favor for $25.33. From that judg- 
ment Simmons appealed in error to this Court. 

What is the legal effect of the judgment in the 
former suit upon the right of plaintiff to the re- 
covery sought in this case? 

Counsel of plaintiff in error contends that the 
judgment in that suit concludes the question of 



DECEMBER TERM, 1891. 365 

Simmons v. Taylor. 

rents, and effectually bars the present action. While, 
on the other hand, Taylor's counsel insists that, as 
a matter of fact, the question of rents was not con- 
sidered in the other suit, and that, therefore, it is 
open for adjudication in this action. 

There is no affirmative proof that any iseae was 
formed or controversy raised with reference to the 
matter of rents in the former suit. The record in 
that case does not show that the question was con- 
sidered by the jury or adjudged by the Court. 
The verdict was general, the jury simply finding 
"the matters in controversy in favor of the plaint- 
iff," Taylor; and upon that verdict the Court 
simply adjudged "costs" against Davis and his 
surety, and awarded a writ of possession in favor 
of Taylor. 

It is plausibly argued, and may be conceded, 
that, as a matter of fact, the question of rents was 
not adjudged in that case; but whether the judg- 
ment there rendered should be held to operate in 
law as res adjudicata of that question, and there- 
by preclude Taylor from maintaining this action, 
is not so easily decided, and does not necessarily 
depend upon that proposition. 

The trial Judge instructed the jury that the 
present action could be maintained, and that plaint- 
iff was entitled to recover rents accruing while 
the former suit was pending if they should find 
that "the question of rents was not settled" in 
that case, and that the rents had not otherwise 
been paid. 



866 NASHVILLE : 



Simmons v. Taylor. 



By the Act of 1835, Ch. 35, sees. 1 and 2 
(Car. & Nich., 348), a person seeking certiorari and 
supersedeas in an action of forcible entry and de- 
tainer, or of unlaxcful detainer^ was required to 
give bond, first, for costs and damages resulting to 
the adverse party from the wrongful prosecution 
of such writs, and, secondly, "to pay and satisfy the 
defendant in damages for the wrongful detention 
of the premises." 

A bond executed under that statute was sever- 
able, and afforded proper foundation, if breached, 
for two distinct judgments in separate actions — one 
being based upon the former and the other upon 
the latter condition in the bond. A judgment in 
the first suit against the petitioner and his surety 
for costs and awarding a writ of possession, as in 
the case now under consideration, did not, under 
that statute, preclude a separate and distinct ac- 
tion by the landlord upon the bond to recover 
"damages for the unlawful detention of the prem- 
ises." Hurt V. Dougherty, 3 Sneed, 418. 

Section 6, Ch. 86, Acts of 1842, met the same 
purpose as the Act of 1835 — that of securing to 
the landlord his rents as well as costs of suit — 
by such change of phraseology as to require the 
petitioning defendant to give bond in double the 
value of one yearns rent of the premises, conditioned 
to prosecute the certiorari with effect or pay all 
costs and damages arising from wrongfully suing it 
out. Nicholson's Stat., 167; Code of 1858, §3362. 

The landlord's protection was enlarged by the 



DECEMBER TERM, 1891. 867 

Simmons v. Taylor. 

second section of Ch. 67, Acts of 1869-70, so as 
to require petitioner to give bond "of sufficient 
amount to cover, besides costs and damages, the 
value of the rent of the premises during the liti- 
gation." - Code (T. & S.), §33736; (M. & V.), §4093. 

Such was the law when Davis gave the bond 
upon which the present action is based, and such 
is the legal effect of the obligation on which ap- 
pellant, Simmons, became surety. 

Though the same in extent, covering both costs 
and rents, his obligation is not severable, as were 
bonds executed under the Act of 1835; and, be- 
sides that difference, the remedy on certiorari and 
supersedeas bonds was changed after the passage of 
that act. 

The sixth section of Ch. 86, Acts of 1842 (in 
addition to the requirement that the bond should 
be in double the value of one year's rent of the 
premises), provided that "if the defendant shall ob- 
tain the certiorari, and, upon the trial in the Circuit 
Court, the jury shall find that the plaintiff is en- 
titled to possession of the land, they shall ascertain 
and find the value of the rents during the time 
the plaintiff has been kept out of possession ; and 
the Court shall give judgment against the defend- 
ant and his securities accordingly." Nicholson's 
Stat., 167. - 

This latter provision was carried into the Code 
of 1858 at § 3363, and is found in the compilation 
by Milliken and Vertrees at § 4094.' It is now the 
prevailing law on that subject. 



368 NASHVILLE : 



Simmons ?'. Taylor. 



Manifestly, the object of the Legislature was 
thereby to provide for and require a full and com- 
plete adjudication of the question of rents in the 
pending suit, without turning the parties over to a 
second litigation about it. The remedy thus given 
is exclusive, the only one left or allowed, at least 
so far as liability upon the bond is concerned. 

The terms of the statute are mandatory. They 
require, in the given case, that the jury ^^ shall 
ascertain and find the value of the rents," and that 
" the Court shall give judgment against the defend- 
ant and his securities accordingly." This means, of 
course, that the party claiming rents shall submit 
the question upon such proof as he may desire or 
be . able to produce, and that, when he has done 
that and the other party has introduced his proof, 
the jury shall make due return on the matter in 
their verdict, and the court shall embrace it in its 
judgment. 

The policy is a wise one, tending as it does to 
prevent a multiplicity of suits^ 

Taylor could and should have presented his de- 
mand for rents in the former suit. Whether he 
in fact did so or not is immaterial in this case. 
If he did, the verdict, failing to find any thing due 
him, is conclusive against him; if he did not, he 
is equally concluded by his failure to avail himself 
of the only remedy the law gives him upon the 
bond. See Weigand v. Malatesta^ 6 Cold., 366. 

The case under consideration is not controlled ' 

by the case of White v. Bowman^ 10 Lea, 55, 



DECEMBER TERM, 1891. 369 

 ■-■- ^-- —  — ^ 

Simmons v, Taylor. 

wherein it was decided that an action at law might 
be maintained upon an injunction bond. 

The certiorari and supersedeas bond, in one and 
the same instrument, covers both costs and dam- 
ages, and, under the present law, is not severable; 
while in case of injunction the costs are covered 
by a prosecution bond (Code, § 3187) and damages 
are secured by an injunction bond (Code, § 4439), 
which is an entirely distinct obligation, and may 
have different sureties. The liability upon the in- 
junction bond, but not upon the prosecution bond, 
may be ascertained and enforced by a reference in 
the injunction suit itself (Code, §§ 4449), or by an 
independent action at law. 10 Lea, 55. 

Reverse and remand. 

Chief Justice Turnby, being related to one of 

the parties, did not sit in this case. 
24-7 p 



870 IJASHVILLE: 



91 370 
116 27 



Sparta v, Lewis. 



Sparta v. Lewis. 
(Nashville. March 17, 1892.) 

1. Supreme Court. Will not set aside verdict^ when. 

Doctrine re-affirmed and explained that Supreme Court will not set aside 
the verdict of a jury in a civil case upon consideration of the facts 
alone, if there is any evidence to sustain the verdict. 

Cases cited: Railroad v. Maloney, 89 Tenn., 332; England v* Burt, 4 
Hum., 399; Dodge ?/. Brittain, Meigs, 84: Tatez^. Gray, 4Sneed, 592. 

2. Same. Same, What is a ciml case within this rule. 

And a suit brought by a municipal corporation before its Recorder to 
recover of an oflfender the penalty imposed by its ordinances for 
assault and battery, is a civil case within the meaning of said rule. 

3. Reasonable Doubt. Not applicable, when. 

And upon the trial of such action the plaintiff is not required to make 
out his case beyond reasonable doubt, but only by a preponderance of 
evidence. 

Cases cited and approved : Hill v, Goodyear, 4 Lea,' 233 ; McBee v. 
Bowman, 89 Tenn., 132. 



FROM WHITE. 



Appeal in error from Circuit Court of White 
County. John Fite, J. 

E. Jarvis for Sparta. 



* 



DECEMBER TERM, 1891. 871 

/ Sparta v. Lewis. 

Hill & Mitchell, M. A. Cummings, and W. J. 
Ferris for Lewis. 

Snodgrass, J. On a warrant sued out in favor 
of the corporation of Sparta, the defendant. Pate 
Lewis, was brought before the Recorder of that 
municipality on a charge of assault and battery, 
which, among other offenses, was one specially 
punishable by city ordinance, * under which he was 
sued. He was found guilty, judgment rendered 
against him in favor of the corporation for ten 
dollars and cost, and he appealed to the Circuit 
Court. There, after trial before a jury, judgment 
was rendered in his favor, and the corporation 
appeals to this court. 

Two objections are made here to the judgment 
and action of the Circuit Court; one that there 
is great preponderance of evidence against the 
verdict, and the other that the Court erred in 
charging the jury that before it could find against 
defendant it must be satisfied beyond a reasonable 
doubt of the guilt of defendant or acquit. 

The language in which the first proposition — that 
there is "a great preponderance of evidence against 
the verdict" — is couched, is quoted from England 
V. Burt^ 4 Hum., 399. There, in aflSrming a 
judgment, the Court did use the language quoted, 
that under a line of cases already settling it, this 
Court would not disturb a verdict approved by a 
Circuit Judge unless there was a great preponder- 
ance of evidence against it. The Court did not 



372 KASH VILLE : 



Sparta v, Lewis. 



attempt then to make a rule or to state more 
than the etfect of it. What the "great prepon- 
derance" must be it did not suggest in that case, 
but it referred to a rule already established. That 
rule was, that the verdict would not be disturbed 
if there was any evidence to sustain it. Dodge. 
V. Brittainy Meigs, 84; Car. Hist. Lawsuit, Sec. 411; 
Tate V. Gray^ 4 Sneed, ^592. 

Afterwards, when -the term preponderance was 
used in this connection, it was put in the form of 
saying, unless the evidence so overwhelmingly pre- 
ponderates against the verdict that the Court can see 
it is clearly wrong; Itnd in some cases other terms 
have been used; but all these expressions refer to 
the same rule, and mean the same thing in legal 
effect and intent, and the rule remains now, as it 
always has been in this Court, that a verdict will 
not be disturbed if there is any evidence to sustain 
it. Railway Co. v. Maloney, 5 Pickle, 382. 

In some recent cases, to the term "any evi- 
dence" of the rule has been prefixed the words 
"material" or "legitimate," " substantial " or "com- 
petent;" but these add nothing to it not already 
implied in its use without them. Trott v. Westj 
Meigs, 168. 

They tend rather to weaken the strength of the 
term by addition of unnecessary expletives. It was 
never decided or thought that any immaterial or 
illegitimate, unsubstantial or incompetent evidence 
was sufficient, nor that ^^any evidence^^ alone was 
sufficient, but " any evidence to' sustain the verdict.^^ 



DECEMBER TERM, 1891. 373 

Sparta v. Lewis. 

This always meant any competent, material, substan- 
tial, connected evidence legitimately establishing the 
proposition decided, though there might be much or 
little evidence to the contrary. It did not mean that 
if there were any evidence of facts tending to estab- 
lish one element of a proposition proven, the whole 
proposition of several elements might be regarded 
as proven, but only that where the evidence made 
out, as an entirety, a prima facie right to a verdict, 
and the jury- so found, it was evidence sufficient to 
sustain the finding. For the same reason, it never 
meant that where one or more facts material to be 
established were established out of several neces- 
sary to be proven to sustain a verdict, that the 
establishment of that one or more by competent 
evidence, substantial, material, and legitimate, should 
justify or sustain a verdict, although both these 
supposed are cases where there is evidence, and 
material, competent, substantial, and legitimate evi- 
dence. But they are not cases where there is 
evidence "<o sustain the verdict;'^ and there must 
always be this in any case if it is sustained in 
this Court. When it is sustained, it is not upon 
the ground that there is "any evidence" in the 
case, or any material, substantial, competent, legit- 
imate evidence in the case^ but upon the ground 
that there is "evidence which sustains the verdict.^* 
The real question in this case is involved in 
the second objection — that is, whether this case is 
within the rule as to preponderance of evidence, 
or must the evidence exclude reasonable doubt. 



374 . NASHVILLE: 



Sparta v, Lewis. 



It 18 argued that the oftense is criminal, and that, 
before the corporation can recover, it must show 
defendant guilty by the same evidence as if it 
were a prosecution by the State on presentment or 
indictment. This view is erroneous. The action 
is not a criminal prosecution. It , is not a trial 
between the State and defendant, nor on present- 
ment or indictment by and before a jury. If it 
were, the evidence would have to be entirely sat- 
isfactory. But this is in the nature of a suit for 
debt. It is not a prosecution, but a suing in 
Court to recover a penalty for the violation of a 
city ordinance. The case was triable before a Re- 
corder. On appeal it was in fact tried by a jury, 
it is true, but only as all civil cases are or may 
be, but not on presentment or indictment. In 
criminal trials proper, the jury must be satisfied 
beyond a reasonable doubt of defendant's guilt. 
There are, too, civil issues as to resulting trusts, 
etc., and on pleas of justification in slander and 
libel and other cases, in which positive statute or 
settled rules of construction, in view of a wise 
policy, require a given kind or amount of evi- 
dence ; but this case falls within no exception of 
the classes indicated. Cases merely involving civil 
redress for criminal offenses need only to be made 
out by a preponderance of evidence. Of course 
the evidence must preponderate after due allowance 
in defendant's favor of the legal presumption of 
innocence of crime and proof of good character, 
when proven ; but, after all, it must be, against all 



DECEMBER TERM, 1891. 375 

Sparta v. Lewis. 

Other evidence and presumptions, but a preponder- 
ance. Hill V. Goodyear^ 4 Lea, 233; Bowman v. 
McBee, 5 Pickle, 132. 

The judgment must be reversed, and the case 
remanded for a new trial. 



876 NASHVILLE : 



91 376 
110 867 



Insurance Company v. Crunk. 



Insurance Company v. Crunk. 



{Nashville. March 19, 1892.) 



1. Supreme Court. Passes upon errors of law, but not upon facts, without 

motion for ntut trial. 

Supreme Court will, upon appeal of a law case, pass upon alleged errors 
of law, but not upon the sufficiency of the evidence to support the 
verdict, although no motion for new trial was entered in the lower 
Court, or was there waived by uniting it with motion in arrest of 
judgment. 

Cases cited and approved: Snapp v, Moore, 2 Overton, 236; Wells v, 
Mosely, 4 Cold., 405; Mumford v. Railroad, 2 Lea, 397; Morgan v. 
Bank, 13 Lea, 239. 

2. Fire Insurance. Averments in declaration in suit for loss. 

In suit for loss upon fire policy containing the provision that '*if the 
building or any part thereof fall except as the result of fire, all insur- 
ance by this policy on such building shall immediately cease," it is not 
essential that plaintiff aver in his declaration the negative of said 
provision. 

3. Same. Construe titm of exemptum clauses in policy. General rule. 

Doctrine re*affirmed and illustrated that ambiguous clauses in a fire 
policy will be construed most strongly against the insurer and in 
favor of the indemnity of the insured. 

4. Same. Construction of exemption clause as to falling of building. 

Under the clause in a fire policy providing that the insurance shall 
immediately cease '*if the building or any part thereof fall except as 
the result of fire," the insurer is not exempt from liability, where 
part of the insured building is blown down just before the remainder 
is destroyed by fire, unless the part blown down constitutes such 
material and integral part of the whole, that without it the insured 
property has lost its original and distinctive character. 



DECEMBER TERM, 1891. 377 

Insurance Company v. Crunk. 

5. Same. Same, Charge of Court, 

And in a case where parts of an insured building had fallen before the 
remainder was destroyed by fire, it is not error for the Court, after 
stating correctly the general proposition construing said clause, to 
illustrate his meaning by saying to the jury that the case made by 
certain phases of the evidence was not within the exempting clause. 
That is no invasidn of the jury*s province. 



FROM LINCOLN. 



Appeal in error from Circuit Court of Lincoln 
County. M. D. Smallman, J. 

W. B. Lamb and J. D. Tillman for Insurance 
Company. 

J. H. HoLMAN & Carter for Crunk. 

Snodgrass, J. The defendant in error brought 
this suit against The London and Lancashire Fire 
Insurance Company to recover for loss sustained 
by fire, which destroyed his buildings, insured by 
said company. 

The policy contained a clause providing that, 
"if the building or any part thereof fall except 
as the result of fire, all insurance by this . policy 
on such building or its contents shall immediately 
cease." 

There was no averment in the declaration that 



878 NASHVILLE : 



Insurance Company v. Crunk. 



the building insured and no part thereof fell except 
as the result of fire, and the defendant demurred 
because of the failure of plaintiff to make such 
averment. The demurrer was overruled. 

Pleas were filed denying liability, and the case 
was tried on the merits, resulting in a verdict and 
judgment in favor of plaintiff for $1,828.75; and 
defendant appealed, and assigned errors of fact 
and law. 

Before proceeding to consider such of these as 
are deemed material for consideration, we notice 
an objection of defendant in error that plaintiff 
cannot avail himself of objections assigned, because 
thfere were no proper motions made below for a 
new trial and in arrest of judgment, the entry of 
record on that subject being that "the defendant 
moved the Court for a new trial and in arrest of 
judgment, which motion was by the Court over- 
ruled," and the point made on it here that this 
was but one motion, and that a motion for a new 
trial could not have been entertained at the same 
time with a motion in arrest, and that a motion 
in arrest, thus made, waives a motion for a new 
trial, citing Snapp v. Moore, 2 Overton, 286, where 
this position was taken arguendo, but doubtless 
correctly by Judge Overton, delivering the opinion 
of the Court. 

But in the view we take of it, this is imma- 
terial. It would only affect the right of defendant 
to object here, as plaintiff in error, that the evi- 
dence did not sustain the verdict, because, as to 



DECEMBER TERM, 1891. 879 

Insurance Company v. Crunk. 

errors of law, he needed no motion for a new 
trial to authorize a correction of errors on appeal. 
4 Coldwell, 405; 2 Lea, 397; 13 Lea, 239. 

And as there was evidence before the jury to 
sustain the verdict, it does not matter whether 
plaintiff in error could not now make the question, 
because, if he could it would be ineffectual, as the 
verdict would not be disturbed upon the facts. 

Passing this, therefore, we proceed to questions 
made and deemed essential to be noticed. 

The first alleged error is the action of the Cir- 
cuit Judge on the demurrer. 

The declaration was not defective for want of 
averment omitted. It is not necessary that it should 
have averred the performance or non-performance 
of conditions subsequent, nor to have negatived 
prohibited acts or excepted risks. May on Ins., 
Sec. 590. 

The second and last error we notice here (though 
all others assigned have been considered and dis- 
posed of in consultation of the Court), is as to 
charge of the Court upon construction and effect 
of this provision of the policy. 

Before the fire destroyed the insured building, it 
had been visited by a cyclone. It was a two-story 
building, with a portico in front, and what is des- 
ignated as an "ell" addition in the rear. This was 
one story. The roof of the two front upper 
rooms had been blown awaj% the rafters, ceiling, 
and parts of walls remaining. 

But there was evidence tending to show that 



880 NASHVILLE : 



Insurance Company 7'. Crunk. 



before this, some lire had been blown out on the 
floor by a current of air passing through a room, 
which was the probable cause of the burning of 
the building subsequently consumed, after the roof, 
etc., had been blown away or fallen in upon the 
fire. This was evidence sufficient to justify the 
verdict that the fire commenced before the fall of 
any part of the building. Of course, if it com- 
menced before the fell, though the entire building 
fell subsequently, the insurance company would be 
liable. May on Ins., Sec. 401. 

The defendant company insisted, however, that 
the evidence showed that the fire commenced after 
the roof, etc., were T)lown away, and there was 
evidence tending to show this. It also insisted 
that a window or window-light was first blown out, 
and through this the air-current had been admitted, 
which blew fire out into the room, if any was so 
blown; and hence, a part of the building had 
fallen before the fire, and the policy ceased, by its 
terms, before the fire started. 

The question thus presented, upon facts and 
proper construction of the policy, is made in ob- 
jection to the charge of the Court, which, on this 
point, was as follows: "The exclusion clause in 
question is not to be literally understood so as to 
avoid the policy if an atom or some minute por- 
tion of the material in the insured building should 
fall. It means some functional portion of the 
structure, the falling of which would destroy its 
distinctive character as such. So that, if the proof 



DECEMBER TERM, 1891. 381 

Insurance Company v. Crunk. 

in this case shows that the roof was blown from 
a part of one of the buildings mentioned in the 
policy sued on (there being two buildings in the 
policy), and one of the upper rooms was uncov- 
ered and the walls thereof partially blown away, 
but leaving more than three-fourths of the build- 
ing intact, and suitable for a dwelling-house, and 
that in this condition it was burned, the clause in 
the policy as to the falling of the building or any 
part thereof, would not exempt defendant from lia- 
bility, if otherwise liable, as before explained, unless 
you should believe, from the proof, that the falling 
was the direct cause of the fire. If the proof 
shows that the fire was scattered over the fioor in 
one •of the rooms of one of the insured houses 
by the wind; that some of it ignited the carpet 
or some of the furniture in the room, and a strong 
wind blew the roof and a portion of the building 
upon it, and, after smoldering a time, it broke 
out and consumed the building; that the wind, and 
not the falling of the building or a part thereof, 
caused the fire; that the fire,- and not the falling 
of the building, was the proximate and direct cause 
of the loss, you should find for plaintiff', if defend- 
ant is otherwise liable, as before explained." 

Defendant in error objects to this upon several 
grounds : 

First, — That it is law only in case of a contract 
where the condition is as to the " falling of the 
building " entire. 

This is an erroneous view. The Circuit Judge 



882 NASHVILLE : 



Insurance Company v. Crunk. 



drew the correct distinction. The falling of "any 
part" of a building in such a contract manifestly 
could not apply to any minute or fragmentary por- 
tion, as it might literally import. If so, the clause 
would be void as unreasonable, and defeating, with- 
out merit, the contract for indemnity. It cannot 
have such a technical or literal construction. Lit- 
eralism being disregarded, the clause must have a 
fair and reasonable interpretation and construction, 
and that which is most favorable to indemnity — the 
object of the contract. Not having a literal mean- 
ing, and not definitely designating what material 
part of the building must fall before the fire to 
exempt the insurer from liability, it must, like all 
ambiguous clauses, be construed most favorably to 
indemnity, and against the insurer. It should, there- 
fore, not have been construed as meaning any 
fragment or portion of a part of the building, 
but an integral part of the entire building, as was 
done by the Circuit Judge. 

Second. — It is next objected to this, that after 
construing this clause, the Circuit Judge told the 
jury that if the roof was blown from "one of the 
rooms," etc., this would not be a falling of any 
part within the meaning of the policy, and that 
this was erroneous, because, first, it limited the 
facts to the blowing off of the roof of one room, 
whereas, the roof of two was blown off, etc. 

This was error in defendant's favor. It left the 
jury to infer that if the roof was blown from two 
rooms, or more damage was done, it might be such 



[. DECEMBER TERM, 1891. 383 

i 

Insurance Company v. Crunk. 

I a falling as the contract contemplated; whereas, in 

' fact, it would not have been, under the proper 

construction he had already given. 

Again, it is said this was an invasion of the 
I right of the jury to determine as a fact what part 

of the building falling might be within the clause. 
This objection is not well taken. The Judge 
tells the jury what construction the contract must 
have, and illustrates by stating such a condition as 
would not be within his meaning or definition or 
construction. If his construction was right, he was 
right in eliminating, by statement, such a blowing 
off of the building as would or would not be 
within it. It is not telling the jury on a contro- 
verted question what the facts were or how to 
find them; it is a statement, to them that certain 
facts, being true or proven, will not bring the case 
thus proven or assumed within the construction 
the Court gives the contract. 

On the whole case, we are satisfied with the 
judgment, and it is afiirmed with cost. 



CASES 



ARGUED AND DETERMINED 



IN THE 



SUPREME COURT OF TENNESSEE, 



FOR THE 



WESTERN DIVISION. 



JACKSON, APRIL TERM, 1892. 



LooHEiHER V. Stewart. 
(Jackson. April 7, 1892.) 

Bankruptcy. Effect of discharge. 

During the interval between the bankrupt's application and discharge, 
his creditor obtained judgment against him for a debt existing at date 
of his application, and provable, though never proved, in the bank- 
ruptcy proceedings. To the creditor's suit upon this judgment, 
brought after his discharge, the bankrupt interposed his discharge as 
a bar. 

Held: The discharge is an effectual bar to the suit. 

25— 7 p . 



886 JACKSON : 



Locheimer v. Stewart. 



Cases cited and approved : Dick v. Powell, 2 Swan, 632; Stratton t/. 
Perry, 2 Tenn. Ch., 633 ; 121 U. S., 457. 



FROM MADISON. 



Appeal in error from Circuit Court of Madison 
County. Levi S. Woods, J. 

John L. H. Tomlin and M. B. Gilmorb for 
Locheimer. 

W. M. McCall and E. L. Bullock for Stewart. 

Snodgrass, J. The question in this case is, 
whether a discharge in bankruptcy can be plead 
in bar of a suit upon a judgment obtained in a 
State Court on a claim provable in bankruptcy be- 
fore the discharge but after commencement of bank- 
rupt proceedings. 

The petition in bankruptcy was filed in 1878, 
but the discharges of defendant's Stewart & Oliver 
were not obtained until 1887-88. 

In the meanwhile, on April 30, 1881, Locheimer 
Bros., creditors of the firm of Stewart & Oliver 
when bankrupt proceedings were instituted, had 
taken judgment on their claim (which was one 
provable in bankruptcy) before a Justice of the 
Peace. 



APRIL TERM, 1892. 387 



Locheimer v. Stewart. 



They brought this suit ou that judgment April 
27, 1891, before a Justice of the Peace, lost, and 
appealed to the Circuit Court. The Circuit Judge 
sustained the plea, and rendered judgment in favor 
of defendants, and plaintiffs appealed in error. 

The judgment is correct. It is in accordance 
with the holding of this Court in a case arising 
under the bankrupt law of 1841 {Dick ^ Co. v. 
Powell^ 2 Swan, 632), and with the persuasive view 
taken by Judge Cooper, on full consideration of 
authorities, after the bankrupt act of 1867. Stratton 
V. Perry, 2 Tenn. Ch., 633. 

The application, correctness, and authority of 
these cases are earnestly contested by plaintiffs, but 
the question has been conclusively settled as then 
held by the Supreme Court of the United States. 
Boynton v. Ball^ 121 U. S., 457 (Law. Co-op. Ed., 
Book 30, p. 985). In that case, taking jurisdiction 
of it as a Federal question, the Supreme Court so 
decided, reversing the judgment of the Supreme 
Court of Illinois to the contrary. 

We concur in the opinion expressed by the Su- 
preme Court of the United States on the merits of 
the question ; but if we did not, we would be 
constrained to follow it, as that Court exercises in 
this class of cases a revisory jurisdiction. 

Let the judgment be affirmed with costs. 



888 JACKSON" : 



Walsh V. Crook. 



Walsh v. Crook. 
{Jackson. April 9, 1892.) 

1. County Court. Jurisdiction as to disputed land titles. 

County Court has not jurisdiction to determine disputed land<titles, 
not even as an incident to the exercise of its undoubted jurisdiction 
to sell a decedent's lands for payment of debts. 

Code construed: ?4982 (M. & V.) ; §§4203, 4204 (T. & S.). 

Case cited and approved: Dean r. Snelling, 2 Heis., 484. 

2. Same. Same. Res adjudieata. 

And its decree in such case does not operate as res adjudicata of the 
matter, although the parties submitted the question without objection 
to the Court's jurisdiction. The proceeding is coram non judice. 
Jurisdiction cannot be conferred, in such case, by consent of parties. 

Code construed: \ 5064 (M. & V.); ^4321 (T. & S.). 

Cases cited and approved: Nicely v. Boyles, 4 Hum., 177; Whillockf. 
Hale, 10 Hum., 65 ; Johnson v. Britt, 9 Heis., 760. 

Cited and distinguished: Leverton v. Waters, Thomp. Cas., 278; 
Leverton v. Waters, 7 Cold., 20; Vincent v. Vincent, I Heis., 333; 
Pardue v. West, i Lea, 729. 

3. Same. Jurisdiction to sell decedents lands. 

But the jurisdiction of the County Court over a proceeding to sell a 
decedent's lands to pay debts is not defeated by the fact that a con- 
troversy over the title to the lands arises during its course. The 
Court may, nevertheless, proceed .to sell the lands, and the purchaser 
at such sale will acquire such title, and such only, as belonged to the 
decedent's estate. Other titles would remain unaffected. 



FROM CHESTER. 



Appeal from Chancery Court of Chester County. 
A. G. Hawkins, Ch. 



APRIL TERM, 1892. 389 

Walsh V. Crook. 

I. F. HuDDLESTON for Walsh. 

J. 8. White for Crook. 

LuRTON, J. J. C. Walsh died intestate. The 
complainant, who is his widow, was qualified as 
his administrator. She regularly suggested the in- 
solvency of his estate, and filed a report showing 
that no assets had come to her hands, and that 
the intestate had left no lands out of which either 
dower or homestead could be assigned. The de- 
fendant, J. A. Crook, filed a claim against the 
intestate with the Clerk of the County Court, 
which seems to have been subsequently allowed. 
Upon the claim thus adjudicated, he filed a petition 
in the County Court praying a sale of a certain 
tract of one hundred acres of land for the pay- 
ment of his debt and those of all other creditors 
who might come in and prove their claims. This 
petition charged that the land sought to be sub- 
jected had belonged to the intestate, and that the 
widow was entitled to dower and homestead out 
of it, and sought to have the remainder subject 
to such homestead and dower sold for payment of 
debts. Complainant was made defendant both as 
widow and as administrator. The heirs at law 
seem also to have been before the Court by reg- 
ular process. Complainant answered this petition, 
and denied that the land sought to be subjected 
belonged to the intestate at the time of his death, 
and set up title in herself under a conveyance 



390 JACKSON : 



Walsh V. Crook. 



from the intestate, and that she had been in pos- 
session for more than seven years, claiming and 
holding for herself under her conveyance. Proof 
seems to have been taken upon this conflict of 
title thus presented by this answer. Upon a final 
hearing, this issue was decided adversely to com- 
plainant's title, and the land ordered to be sold 
subject to a homestead. An appeal seems to have 
been prayed and granted, subject to execution of 
cost-bond. Bond was never given, but the pauper's 
oath tendered the Clerk in lieu of bond. The 
order not permitting the Clerk to take the oath, 
he properly refused to file her afiSidavit. The ap- 
peal was, therefore, never perfected. 

Before the sale was made, complainant filed the 
original bill in this record, setting out the facts 
concerning her title to the land about to be sub- 
jected to sale, and the issue made in her answer 
by which she presented her claim. The theory 
of the bill was that the decree of the County 
Court was void, as beyond the jurisdiction of the 
County Court, in so far as it undertook to ad- 
judge her title bad, and that the decree consti- 
tuted a cloud upon her title which she sought to 
have removed. She sought an injunction to re- 
strain any sale until her rights could be adjudged. 
An injunction was refused, the Chancellor in his 
fiat stating that he did so because he was of opin- 
ion that the County Court had jurisdiction of the 
subject-matter and of the parties, and had adjuged 
tlie title of complainant to be bad. The bill was. 



APRIL TERM, 1892. 391 

Walsh V. Crook. 

however, filed, though the sale was not stopped. 
At this sale the defendant became the purchaser 
of the remainder . interest in the land claimed by 
Mrs. Walsh. After it had been reported and con- 
firmed, a supplemental bill was filed, setting out 
these facts, and praying to have the title thus ob- 
tained canceled as constituting a cloud. 

To the original and supplemental bill the defend- 
ant interposed a demurrer, relying upon the de- 
cree of the County Court adjudging the issue of 
title against complainant, as res adjudicata. This 
demurrer was sustained, and the bill dismissed. 

The estate being insolvent, the jurisdiction of 
the County Court to subject any lands of the in- 
testate to sale for the payment of debts cannot 
be doubted. Clearly, the defendant has obtained 
any title which descended to the heirs; and the 
fact that the title was disputed in the answer of 
Mrs. Walsh did not operate to suspend or defeat 
the jurisdiction of the County Court to sell what- 
ever interest the intestate had in these lauds. The 
jurisdiction of that Court to adjudge a question 
of conflict of title is a question quite distinct. 
If the land turns otit to be the land of the in- 
testate, the purchaser has acquired it; but if, on 
the other hand, it shall appear that the intestate 
had never owned the land, or had conveyed it, or 
it had been lost by adverse possession, then the 
purchaser has obtained no title. The County Court 
has no jurisdiction beyond that expressly conferred 
by statute. It has never had jurisdiction to try 



392 JACZSOIT: 



Walsh V. Crook. 



and determine conflicting land-titles. This has been 
repeatedly ruled in partition cases. Dean v. Sudl- 
ing^ 2 Heis., 484. 

The filing of an answer and the submission of 
an issue upon conflicting titles will not confer upon 
that Court a jurisdiction not conferred -by statute. 
Idem. 

Section 5064, C6de (M. & V.), providing that 
the filing of an answer is a waiver of objection 
to jurisdiction, applies only to the Chancery Court. 
This was expressly so ruled in Dean v. Snellingy 
supra. We are no more disposed than our prede- 
cessors to extend by construction a jurisdiction 
which that court is so wholly unfitted to exercise. 
Section 4982, Code (M. & V.), vests in the County 
Court all incidental power necessary to the exer- 
cise of jurisdiction expressly conferred. It has been 
urged that if that Court has not the power to 
decide a question of conflict of titles, that it 
cannot exercise its undisputed jurisdiction in sub- 
jecting lands of the intestate to the payment of 
debts; that its jurisdiction would be at an end 
whenever the heirs or any one else chose to inter- 
vene and set up a claim to the land sought to be 
sold. This conclusion by no means follows. The 
wheels of that tribunal cannot be locked by the 
mere presentation of such an issue. It may, and 
should, inquire as to the ownership of the lands 
it may be asked to sell, and it may decree any 
lands sold that shall appear from the record to 
have belonged to the decedent. But its decree 



APRIL TERM, 1892. 393 

Walsh V. Crook. 

will not opei'ate as an adjudication of any real 
conflict which may exist, nor will it operate as 
Tt8 adjudicata in any subsequent action' between 
the purchaser and one claiming adversely to the 
title of decedent. Such an adverse claimant may 
resist the title of the purchaser when sued, or, as 
in this case, prefer a bill to have his title can- 
celed as a cloud. We are supported in our con- 
clusion as to the effect of such incidental adjudi- 
cation of conflicting titles by a consideration of 
the old rule concerning the jurisdiction of the 
Chancery Court in regard to conflicting titles af- 
fected by a decree for partition. 

Under that rule. Courts of law were exclusively 
given jurisdiction in matters involving disputed 
titles. Originally, it was held that even the filing 
of an answer did not confer jurisdiction to adjudge 
a conflict appearing in a partition case, and that 
a decree of partition could not be relied upon as 
res adjudicata in a subsequent action of ejectment. 
Nicely v. Boyles^ 4 Hum., 177; Whillock v. HaWs 
Heirs, 10 Hum., 65 ; Dean v. Snelling, 2 Heis., 
489; Johnson v. Britt, 9 Heis., 760. 

But after the passage of the Act of 1851-52, 
carried into the Code (M. & V.) as § 5064, the 
filing of an answer was held to be a waiver of 
jurisdiction. Leverton v. Waters, Thomp. Cas., 278 
(S. C, 7 Cold., 20); Vincent v. Vincent, 1 Heis., 333. 

But, as we have already seen, this act operated 
only to confer jurisdiction by consent upon the 
Chancery Court. Concerning the Chancery Courts 



394 JACKSON': 



Walsh V. Crook. 



it may be well to observe that, since the extension 
of the jurisdiction of that Court by the Act of 
1877, all question of the power of that Court to 
determine conflicting titles has been removed. The 
question presented by this bill and the demurrer is 
not one as to the power of the Chancery Court 
to review a decree of the County Court. No' 
such power exists. Pardue v. West, 1 Lea, 729. 

The County Court had no jurisdiction to ad- 
judge the claim of title set up by Mrs. Walsh; 
hence the decree, so far as it is sought to be set 
up as res adjudicata, is a nullity. The demurrer 
should have been overruled. The heirs of J. C. 
Walsh were not necessary parties. The sale op- 
erated to pass their title to the defendant pur- 
chaser. 

Reverse and remand for answer. 



APRIL TERM, 1892. 895 



Railroad z/.*Barnhill. 



Railroad v. Barnhill. 
{Jackson. April 12, 1892.) 

1. Railroads. Residence, Garnishment, 

A railroad corporation that owns and operates under one management 
a continuous line through this and two other States, having separate 
charters from each of the three States — that obtained in Tennessee 
being the youngest — is a resident and domestic corporation of this 
State, and subject, as such, to suit and garnishment in the Courts of 
this State. 

Cases cited: 104 U. S., 5; 13 Pet., 520; 107 U. S., 581. 

2. Same. Same* Same, 

And such corporation is subject to garnishment by a citizen of this 
State in the Courts of this State, although the debt sought to be 
reached is due to a non-resident, and contracted in one of the other 
Stales where the company is chartered. * 

Code construed: §§ 3536 ei seq, (M. & V.) ; J§ 2831 et seq. (T. & S.). 

Cases cited and approved: Holland v. Railroad, 16 Lea, 414; Railroad 
V, Walker, 9 Lea, 480. 



FROM m'nAIRY. 



Appeal in error from the Circuit Court of 
McNairy County. Levi S. Woods, J. 

J. M. Boone for Railroad. 



396 JACKSOI^ : 



Railroad v. Barnhill. 



J. T. Barnhill, and Stovall & Herring for 
Barnhill. 

Caldwell, J. This is a garnishment proceeding, 

by which J. T. Barnhill seeks to recover from the 

' Mobile and Ohio Railroad Company, as garnishee, 

the sum of $50.60, due from it to his debtor, J. 

J. Joyner. 

The Circuit Judge tried the case on an "agreed 
statement of facts," and rendered judgment in favor 
of Barnhill. The railroad company appealed in 
error. 

In its answer, the railroad company admits that 
it is indebted to Joyner in the sum of $52.60, but 
denies that it is subject to garnishment in the 
State of Tennessee for that indebtedness. 

The facts upon which the defense is made are 
as follows: That the Mobile & Ohio Railroad Com- 
pany was chartered originally by the State of Ala- 
bama, then by the State of Mississippi, and then 
by the State of Tennessee; that the indebtedness 
of the company "to Joyner is for labor performed 
wholly within the State of Mississippi," and under 
contract made in that State, and that he is a cit- 
izen of that State. 

Barnhill is a resident of Tennessee; and the 
garnishment process, which is in due form, was 
regularly served on the station agent of the rail- 
road company at Ramer, in McNairy County, this 
State. 

From these facts the argument is made that 



\ 



APRIL TERM, 1892. 397 

Railroad v. Barnhill. 

the railroad company, as well as Joyner, is a non- 
resident of Tennessee and a resident of Mississippi, 
as to the subject-matter of this litigation, and that 
therefore the Courts of this State have no juris- 
diction to render judgment against it for the debt 
in question. 

It is true, as a general rule, that a non-resi- 
dent cannot be charged as garnishee; but it is not 
true that the railroad company is to be treated, 
in this case, as a non-resident. In reality it is 
not a non-resident, but a resident of Tennessee. 
It exists and performs its functions within our ter- 
ritorial limits as a domestic corporation, by virtue 
of a charter granted by the Legislature of this 
State. Acts 1847-48, Ch. 118. 

That the same incorporators obtained earlier 
charters from the States of Alabama and Missis- 
sippi, and effected an organization and still do 
business thereunder, does not render the corpora- 
tion any less a resident of Tennessee. 

It is well settled that a corporation created and 
organized under the laws of a particular State has 
its legal residence in that State, and that it can- . 
not change its citizenship by doing business in 
another State. Baltimore and Ohio R. JR. Co. v. 
Koontz, 14 Otto, 5. 

" It must dwell in the place of its creation, 
and cannot migrate to another sovereignty." Bank 
of Augusta v. Harle, 13 Peters, 520. 

Yet different charters for the same general busi- 
ness may be granted by different States to the 



398 JACKSON : 



Railroad v. Barnhill. 



Bame incorporators; and when that is done, and 
organization is properly eftected under each char- 
ter in succession, the corporation becomes a citizen 
of each State, and, as such, has the protection of 
and is amenable to her laws* Memphis and Charles- 
ton Railroad Company v. State of Alabama^ 107 U. 
S., 581. 

The fact that the indebtedness of the railroad 
company to Joyner arose in Mississippi, under a 
contract made in that State, does not render the 
railroad company a non-resident of Tennessee as to 
that indebtedness. The contention to the contrary, 
and that the railroad company is a non-resident 
of this State as to that debt, is not sustained 
by the case of Memphis and Charleston Railroad 
Company v. State of Alabama^ 107 U. S., 581. 

The decision in that case was that the railroad 
company was a citizen of both Tennessee and Al- 
abama, having been chartered in each State; and 
that, being a citizen of Alabama, it could not, 
upon the ground of citizenship in Tennessee, re- 
move into the Circuit Court of the United States 
a suit brought against it in a State Court of Ala- 
bama by another citizen of Alabama. 

It was not there decided, as here contended, 
that, for the purposes of that litigation, the cor- 
poration was to be treated as not a citizen of 
Tennessee because the matters involved arose in 
Alabama. The ground of that decision was cor- 
porate citizenship in Alabama, the Court holding 
that the corporation was a citizen of that State as 



APRIL TERM, 1892. 399 

Railroad v. Barn hill. 

well as of Tennessee, where it obtained its first 

charter. 

• 

The Mobile & Ohio Railroad Company, as already 
stated, was chartered and is doing business in Ala- 
bama, Mississippi, and Tennessee. It is, therefore, 
in fact and in law a citizen of each of these States. 

Whether the debt here involved was created in 
this State or in the State of Mississippi, is a 
question which cannot affect the citizenship of the 
corporation in Tennessee, or the jurisdiction of the 
courts of this State to render proper judgment 
against it as garnishee in this case. 

Nor does the non-residence of Jovner, the cred- 
itor of the railroad company and debtor of plaintiff 
below, defeat or preclude the jurisdiction of our 
Courts. Clearly, Joyner himself could have come 
into Tennessee and maintained his suit here against 
the railroad company for its indebtedness to him. 
He could have oJ:)tained jurisdiction of the cor- 
poration by service of process upon its proper of- 
ficer or agent in this State. Code, §2831 ei seq. 
That being so, it would seem to follow that his 
creditor can by service upon the same person bring 
the corporation before the Court, and there have 
the same question of liability adjudged. 

Even as against a foreign corporation doing a 
regular business in this State, the present proceed- 
ing would be within the rules of procedure laid 
down in a recent work of high standing. The 
language of the work referred to is as follows : 

" The question of the liability of foreign cor- 



400 JACKSON : 



Railroad v. Barn hi II. 



porations to garnishment differs little from that of 
natural persons domiciled in another jurisdiction, 
in so far as the course of business of certain 
classes of corporations has occasioned the enact- 
ment of special statutes in most of the States, giv- 
ing Courts jurisdiction of such bodies when engaged 
in the prosecution of their business in States other 
than that of their residence. 

"Except, therefore, in those States where it is 
held that corporations are in no event subject to 
garnishment, a foreign corporation may be charged 
as garnishee in all cases where an original action 
might be maintained against it for the recovery 
of the property or credit in respect to which the 
garnishment is served. In some of the States this 
rule obtains through the construction of statutes 
pari materia^ and in others by express provision. 
Generally, the jurisdiction of the Court in such 
cases is based upon a statute providing for the 
commencement of suits against foreign corporations 
when engaged in doing business within the State, 
by service upon some officer or agent of the com- 
pany resident there or that may be found within 
the jurisdiction.'' 8 Am. and Eng. Ency. of Law, 
1131, 1132. 

In this State there is just such a statute as that 
referred to in the last sentence above. Code, 
§§ 2831 to 2834a inclusive. It comprehends both 
domestic and foreign corporations. Railroad Com- 
pany V. Walker, 9 Lea, 480; 16 Lea, 418. 

In any and every aspect of the case at bar the 



APRIL TERM, 1892. 401 

Railroad v, Barnhill. 

plaintiff in error is subject to be charged as gar- 
nishee. 

The same question, upon very similar facts, came 
before this Court in Holland v. Mobile and Ohio 
Railroad Company^ 16 Lea, 414. The conclusion 
reached in that case was the same as that reached 
in this. A mere citation of that case would have 
been sufficient for the purposes of this one but for 
the fact that counsel has questioned the soundness 
of the decision there made, and asked to have the 
question re-examined. 

Believing it to be entirely sound, we adhere to 
the ruling made in that case. In the conclusion 
of the opinion, the Court, speaking through Judge 
Cooper, said: "All of the authorities agree, there- 
fore, that in the case of a railroad corporation 
chartered by two or more States the corporation 
may be garnished in each State for wages due by 
it to its employes. Drake on Attachments, Sec. 879; 
1 Rorer on Railroads, Sec. 720." 16 Lea, 418. 

Affirmed with costs. 

26— 7 p 



402 JACKSOX : 



Howell z/. Jones. 



Howell v. Jones. 
{Jackson, April 19, 1892.) 

1. Homestead. Da^s not attach to a rei>ersionary interest. 

Homestead does not attach to a reversionary interest in land. The 
claimant of homestead must have the right of present occupancy, 
though it is not essential, since Act 1879, that he have actual occu- 
pancy of the land to entitle him to homestead. 

Cases cited and approved: Jackson v, Shelton, 89 Tenn., 88, 89 ; Arnold 
V. Jones, 9 Lea, 548; Fauver z'. Fleenor, 13 Lea, 622; Flatt v, Stadler, 
16 Lea, 371 ; Roach v. Hacker, 2 Lea, 633; Henry v, Wilson, 9 Lea, 
176; Rhea z/. Rhea, 15 Lea, 527; Apple z/. Apple, I Head, 348. 

2. Same. Widow's right dependent upon husband. 

Unless the husband had the right of homestead in lands at his death, 
his widow can have none. 



FROM WEAKLEY. 



Appeal from Chancery Court of Weakley County. 
H. J. Livingston, Ch. 

Charles M. Ewing for Jones. 

J. W. Thomas for Howell. 

LuRTON, J. The question presented in this rec- 
ord is as to whether a widow is entitled to home- 



APRIL TERM, 1892. 403 

*■  I  ■■^^—   .■ I ■! I I  ■■»   I .  . M^»» 

Howell V. Jones. 

Stead in property owned by her deceased husband, 
but which, at the time of his death, was in the 
actual occupancy of the widow of his father, it 
having been assigned to her as a homestead. Can 
there be two homesteads in the same land at the 
same time? Under our Act of 1879, it is not 
essential, to the right of homestead that the claim- 
ant should be in the actual occupancy. So may a 
homestead be assigned in an estate for life. 9 Lea, 
548. By express statute it exists in equitable 
estates. 13 Lea, 622. But a homestead is not an 
estate in land but a right of occupancy. 13 Lea, 
622; 16 Lea, 371. The debtor's lauds may be sold 
subject to this right of homestead, or the rever- 
sion sold as such. 2 Lea, 579; 16 Lea, 371. 

The right under our statute, as construed by 
our predecessors, is neither more nor less than a 
right of use or occupancy, which cannot be con- 
veyed except in the manner provided by the Con- 
stitution, and is exempt from the demands of 
creditors. 

Before the Act of 1879, actual occupancy was 
essential to the claim of homestead. 2 Lea, 633 ; 
9 Lea, 176. Since that Act actual occupancy is 
not essential. 15 Lea, 527. But, being a mere 
exemption of a right of occupancy, the right of 
personal occupancy is essential to the existence of 
the homestead. The exemption is one in favor of 
the husband. If none existed in his favor, none 
passed to his widow. 

The lands in which Mrs. Jones has been as- 



404 JACKSON : 



Howell V, Jones. 



signed homestead, were lands in which her husband 
had no homestead exemption, by reason of the 
fact that the widow of his father was in posses- 
sion under her own homestead exemption. The 
right of her husband was in the remainder, and 
he had no right of present occupancy. He owned 
and occupied a wholly different tract of land. His 
right of homestead was, therefore, limited to the 
land in which he had a present right of occu- 
pancy. His widow had no right superior to that 
of her husband. We are, therefore, of opinion 
that a right of homestead does not exist in a re- 
versionary interest. 

This is clearly the conclusion from the decision 
in Jackson^ Orr ^ Co. v. Shelton, 89 Tenn., 88, 89, 
and is the rule applicable to dower. Apple v. 
Apple, 1 Head,- 349. The County Court erred in 
assigning homestead out of the lands subject at 
the death of Mrs. Jones' first husband to the 
homestead of the widow of his father. She was 
entitled, however, to homestead in the tract owned 
and occupied by her husband. 

Reverse and remand for a re-assignment. Jones 
and wife will pay all costs accrued to this decree. 



APRIL TERM, 1892. 405 



Stout V, State. 



Stout v. State. 
{Jackson. April 19, 1892.) 

Criminal Practice. Liability of counties for costs in felony cases. 

Chapter 22, Acts 1891 (Extra Session), providing that counties shall 
pay the costs in felony cases where they are disposed of without final 
trial, has no application to felony cases in which the indictment was 
found before the passage of the Act. 

Act construed: Acts* 1891 (Ex. Sess.), Ch. 22. 



FROM WBAKLET. 



Appeal in error from Circuit Court of Weakley 
County. W. H. Swiggart, J. 

Charles M. Ewing for Stout. 

Attorney-general Pickle for State. 

Caldwell, J. On June 4, 1891, Sam Stout was 
indicted for larceny. In due course of time he 
was tried and convicted. Upon appeal in error to 

*This Act became a law September 19, 1891. It was construed by an oral opinion, 
delivered at last term, at Nashville, in Caswell v. State^ and held to render the 
counties liable for costs of felony cases (i) when nolle prosequi \s entered; (2) when 
grand jury ignore the indictment; (3) when case is retired; (4) when case is dis- 
missed by Justice of the Peace on preliminary trial.— Reporter. 



406 JACKSON^ 



Stout V. State. 



the present term of this Court, the judgment of 
the Circuit Court was, on a former day, reversed 
and a nolle prosequi entered by the State. 

The case is now before us on the motion of 
the Attorney -general, and we are asked to deter- 
mine whether the State or the county shall pay 
the costs accrued on behalf of the State. 

Under the Code (§ 5585, subsec. 2, and § 5586), 
they were taxable to the State, the oflfense charged 
being punishable "by confinement in the peniten- 
tiary." By Sees. 1 and 2, Ch. 22, Acts 1891 (Ex- 
tra Session), that provision of the Code was so 
amended and changed as to make the county lia- 
bli^ for such costs in such a case. That act was 
passed and approved on September 19, 1891, and 
took eflfect " from and after its passage." 

Which of the two statutes applies to this case, 
the indictment having been found before the pas- 
sage of the amendatory Act, and the nolle prosequi 
having been entered afterward? 

The intent of the Legislature does not very 
clearly appear. Yet, we are of opinion that the 
recent Act contemplates only such prosecutions as 
may be commenced after its passage, and ^lat cases 
then pending are not embraced within its provis- 
ions. This construction gives the Act prospective 
effect only. A different construction would render 
it retrospective, in part at least. 

The costs in this case are, therefore, taxable 
under the Code provisions. 



APRIL TERM, 1892. 407 



Epperson v. Robertson. 



Epperson v. Robertson. 
{Jackson. April 22, 1892.) 

I. Bankruptcy. Assignee's rights. Attached property. 

An assignee in bankruptcy takes the bankrupt's property subject to all 
equities, liens, powers, and incumbrances existing against it at com- 
mencement of the bankruptcy proceedings, except so far as these are 
defeated or modified by express provisions of the bankrupt Act. 
Attachment of the bankrupt's property "on mesne process, * *  
made within four months next preceding the commencement of the 
bankruptcy proceedings," is dissolved by express provisions Of the 
bankrupt Act. 

Act construed: U. S. Rev. Stat., §5044. 

Cases cited: 95 U. S., 764; loi U. S., 731 ; 104 U. S., 232. 



2. Same. Uen not dependent on mesne process^ w/ien. 

Bankrupt's creditor, without judgment at law, filed bill "within four 
months next preceding the commencement of the bankruptcy pro- 
ceedings" to set aside fraudulent conveyance of bankrupt's realty, 
and'subject san^ie to payment of his debt. The bill prayed for attach- 
ment, which was issued and levied upon the lands therein described. 
These lands passed to the assignee in bankruptcy, and were sold by 
him. 

Held: The bankrupt's creditor had secured lien on these lands by the 
filing of his bill, and independently of the levy of the attachment, 
and that this lien was not dependent on mesne process, and therefore 
not defeated by the bankruptcy proceedings and sale. 

Code construed: §5031 (M. & V.) ; §4288 (T. & S.). 

Cases cited and approved: Peacock v. Tompkins, Meigs, 317; August 
V, Seeskind, 6 Cold., 167; House v, Swanson, 7 Heis., 32; Brooks z/. 
Gibson, 7 Lea, 271; Nailor z'. Young, 7 Lea, 738; Cowan v. Dunn, 
I Lea, ^8. 



408 JACKSON : 



Epperson v. Robertson. 



3. Same. Waiver of benefit of discharge. 

At commencement of bankruptcy proceedings, a suit was peniling 
against the bankrupt by his creditor to set aside fraudulent convey- 
ance of lands. These lands were sold by the assignee in course of 
the bankruptcy proceeding, and purchased by the bankrupt himself. 
After his discharge, the bankrupt appeared in said cause and promised 
to pay the debt sued for. Thereupon decree was entered against him 
for the debt and for sale of the land. From this decree there was no 
appeal. 

Held: Decree is not void, but conclusive upon the bankrupt on collateral 
attack.  ' 

4. Stati^te of Limitations. Ten years. Judgments and decrees. 

Only final judgments and decrees fall within the operation of the statutes 
of limitations. Hence, the enforcement of a decree for a debt, and 
sale of land to satisfy it, is not barred by a delay of ten or more years 
in its execution, the cause remaining in Court during that interval. 

Code construed: 83473 (M. & V.); ?2776 (T. & S.). 

Cases cited and approved: Ex parte Spence, 6 Lea, 391 ; Gold z'. Bush^ 
4 Bax., 579; Tyner v, Fenner, 4 Lea, 469. 

5. Same. Sez'en years. 

In suit to set aside fraudulent conveyance, seven years* possession of the 
land during the pendency of the suit by the debtor, under color of 
title, cannot defeat the creditor's right to have the lands sold for his 
debt. 

Code construed: §3459 (M. & V.); ? 2763 (T. & S.). 



FROM MADISON. 



Appeal from Chancery Court of Madison County, 
A. G. Hawkins, Ch. 

Haynes & Hays for Epperson. 



APRIL TERM, 1892. 409 

Epperson v, Robertson. 

McCoRRY & Bond, E. L. Bullock, and John L. 
Brown for Robertson. 

LuRTON, J. This bill was filed for the purpose 
of enjoining the execution ^of a decree of the 
Chancery Court in favor of the defendants, and 
against the present complainant. The defendants 
were creditors of complainant, and, as such, filed 
their bill in equity, under. Code (M. & V.), § 5031. 
This bill described four several tracts of land, be- 
ing the same about to be sold under the decree 
now attacked, and charged that they had been 
fraudulently conveyed to one Coles, who was joined 
as a defendant. The prayer of the bill was, that 
the lands so described be attached, and that, on 
final hearing, they have judgment and decree upon 
their several debts, and that the sale to Coles be 
declared fraudulent — as intended to defeat creditors 
— and the lands sold for the satisfaction of their 
decrees. An attachment did issue, and was levied. 
Upon final hearing, January 27, 1879, the Court 
pronounced a decree in favor of the complainants 
in that bill, and directed that the lauds so fraud- 
ulently conveyed be sold for the satisfaction of 
the debts found to be due. 

This decree has never yet been executed, but 
from term to term was revived and renewed, the 
delay being clearly due to the urgent requests and 
entreaties of complainant. When at last it was 
about to be executed, the sale advertised by the 
Master in Chancery was enjoined by this bill. 



410 JACKSON : 



Epperson v. Robertson. 



The creditors obtaining these judgments subsequently 
assigned them to the defendants, Carter Bros. & 
Co., who have filed their answer as a cross-bill, 
and ask to have the decrees revived in their names, 
and to have the sale enforced for their benefit. 
Upon the pleadings and evidence, the Chancellor 
dismissed the original bill, and gave a decree upon 
the cross-bill according to its prayer. Complain- 
ant Epperson has appealed from the whole decree. 
The grounds relied upon in argument in support 
of the relief sought by complainant will be con- 
sidered' separately, but in such order as is most 
convenient, rather than as presented by the assign- 
ment of errors. 

Within four months after the filing of the bill 
of Robertson & Botts and others, the defendant 
thereto, R. H. Epperson, became a voluntary bank- 
rupt, and in December, 1876, received his final dis- 
charge. The lands attached were sold by his as- 
signee in bankruptcy, without any order or decree 
of Court, and purchased by him February 9, 1877. 
He now insists that the effect of his bankruptcy 
was to discharge the attachments ; that the land 
passed to his assignee in bankruptcy freed from 
any incumbrance ; and that, by the purchase from 
the assignee, he has been re-instated in the title, and 
now holds the property unincumbered by the at- 
tachment proceeding theretofore begun against him. 

An assignee in bankruptcy takes the property 
of the bankrupt in the precise situation in which 
it was at the commencement of the bankrupt pro- 



APRIL TERM, 1892. 411 



Epperson v. Robertson. 



ceedings, and subject to all the equities, liens, 
powers, and incumbrances existing against the prop- 
erty, except in so far as the bankrupt Act, by 
express provision, has avoided them. Yeaiman v. 
New Orleans Savings Institution, 95 U. S., 764; 
Stewart v. Piatt, 101 IT. S., 731. 

By the fourteenth section of last bankrupt Act, 
it was provided that upon the appointment of an 
assignee, and on the assignment to him of the 
bankrupt's property and estates, the " assignment 
shall relate to the commencement of the proceed- 
ings in bankruptcy, and thereupon, by operation of 
law, the title to all such property and estates, both 
real and personal, shall vest in said assignee, al- 
though the same is then, attached on mesne process 
as the property of the debtor, and shall dissolve 
any such attachment made within four months next 
preceding the commencement of the bankruptcy pro- 
ceedings." The property in controversy had been 
attached within four months of the commencement 
of the proceedings in bankruptcy. If the lien 
sought to be enforced under the decree of 1879, de- 
pended upon the attachments which had been levied, 
a very serious question would be presented for 
solution. The undoubted effect of the commence- 
ment of the proceedings within four months, would 
be to dissolve the attachment liens, thereby enabling 
the assignee to take the property unincumbered by 
any such lien. Another consequence would prob- 
ably be that the purchaser from the assignee would 
acquire a title superior to that of a purchaser 



412 JACKSON: 



Epperson v, Robertson. 



under a decree subsequently entered enforcing the 
lien of the dissolved attachments. Conner v. Longy 
104 U. S., 232. 

But that is not this case. The lien of the 
creditors under the proceeding in question did not 
depend upon nor result from the attachment. 

The decree of January 27, 1879, adjudges that 
the complainants, "by the filing of their bill 
herein, have acquired a lien upon said property^ 
which is specifically set out in the bill herein." 

By § 5081 of the Code, " any creditor, without 
first having obtained a judgment at law, may file 
his bill in chancery for himself, or for himself and 
other creditors, to set aside fraudulent conveyances 
of property or other devices resorted to for the 
purpose of hindering and delaying creditors, and 
subject the property, by sale or otherwise, to the 
satisfaction of the debt.'* 

By the next section it is provided that writs 
of attachment or injunction may be granted on 
giving bond, with security, in such sum as the 
Chancellor may order. 

That bill was filed under the section quoted, 
and the attachment issued by virtue of the next* 
The attachment was not essential. It operated 
only to impound the property and prevent further 
incumbrance or transfer. The creditors acquired a 
lien from the filing of the bill, which could only 
be defeated by failure to establish the existence 
of their debts or the fact of fraud. This has 
been repeatedly decided, beginning with Peacock v. 



APRIL TERM, 1892. 413 



Epperson v, Robertson. 



2'ompkins^ Meigs' Reports, 317, and followed and 
reiterated in a number of subsequent cases, only 
a few of which need be cited : August v. Seeskind^ ' 
6 Cold., 167: House v. SivansoUy 7 Heis., 32; 
Brooks V. Gibson^ 7 Lea, 271 ; Nailor v. Young^ 7 
Lea, 738; Cowan v. Dunn^ 1 Lea, 68. 

In Brooks v. Gibson^ supra, it was expressly de- 
cided that a creditor filing such a bill and taking 
no attachment was entitled to priority over a cred- 
itor who filed a later bill, but sued out an attach- 
ment. The bankrupt Act only affected " attach- 
ments on mesne process." 31esne process means 
intermediate, intervening process. The term is a 
technical one, and, as used in the Act, would 
seem to require its obvious technical meaning. It 
has not been defined by the United States Su- 
preme Court in any case to which we have been 
referred. In the absence of any construction of 
this phrase by that Court, we must construe it for 
ourselves. The lien declared and enforced by the 
decree of 1879 was not a lien resulting from the 
attachment. It was an equitable lien, and not a 
consequence of any attachment under mesne pro- 
cess. It was, then, hot aftected or dissolved by 
the bankrupt proceedings. 

This principle has been twice decided in reported 
opinions by this Court — House v. Swanson, 7 Heis., 
32, and Cowan v. Dunn, 1 Lea, 68. It is true 
that the bills in those cases had been filed under 
§5026 of the Code, and that by §5029 a lien is 
declared to exist from the filing of such bills. 



414 JACKSON : 



Epperson «'. Robertson. 



But this was but a statutory declaration of a well- 
recognized equitable lien. Meigs' Rep., 317 ; 7 
Lea, 271. 

It follows that the assignee took this property 
subject to this equitable lien, and that he sold 
subject to this lieu. He might have made himself 
a party to the chancery cause and contested the 
debt or the fact of fraud or the question of lien. 
If he succeeded, his title would have been unin- 
cumbered so far as that lien was concerned. He 
did not do so. His sale was, therefore, subject to 
the pending litigation, and the purchaser stands in 
his shoes. 

But upon another and independent ground we 
reach, the same result as to this property. The 
defendant in that suit, after his discharge in bank- 
ruptcy, and in January, 1878, came into Court, and 
on the record confessed his "willingness to pay 
said debts, * * * and that he has, since 
his proceedings in bankruptcy began, and since 
his discharge therein, and doth now, promise to play 
the same." A year thereafter the decree now as- 
sailed was entered. At the date of each of these 
decrees he was a discharged bankrupt, and had 
already re-acquired the title to the property upon 
which the lien was declared. Independently of any 
question as to the eft'ect of his bankruptcy upon 
the lien, resulting from the filing of the bill; and 
assuming that the lien had been dissolved and de- 
feated by the commencement of his proceedings in 
bankruptcy, yet that Court, having jurisdiction of 



APRIL TERM, 1892. 416 

Epperson v. Robertson. 

the subject-matter and of the parties, adjudged, 
upon his own admission of indebtedness, that the 
complainants in that cause had a lien from the filing 
of their bill, and were entitled to enforce same 
by a sale. As before stated, the purchaser at the 
assignee's sale was the defendant in the pending 
suit. It may have been error to hold that the 
complainants therein had a lien, and were entitled 
to enforce same by ,a sale. But, obviously, the 
decree was not void. If erroneous, his only rem- 
edy was by resort to some appellate proceeding. 

The next defense to be considered is that aris- 
ing upon the plea of the statute of limitations of 
ten years barring actions upon judgments and de- 
crees. Manifestly this statute applies only to final 
judgments and decrees. It cannot operate upon 
interlocutory decrees, or we should have the ex- 
traordinary spectacle of the earlier decrees in a 
prolonged litigation becoming barred before the 
rendition of a final decree at the termination of 
the litigation. 

The decree ordering sale of this land was not 
final in such sense as to have entitled the defend- 
ants, as matter of right, to an appeal until after 
the sale therein ordered had been made. Code 
(M. & v.), §3874; Abbott v. Fogg, 1 Heis., 742; 
Gibson v. WideneVj 85 Tenn., 16. 

The Chancellor, under the statute cited, might, 
in his discretion, have granted an appeal before 
the sale; but he was not required to do so, the 
decree not being final. The Court did not lose 



416 JACKSON: 



Epperson v. Robertson. 



its jurisdiction over the cause, but retained * it for 
the purpose of enforcing its decree subjecting this 
property to the satisfaction of the debt it had 
found to be due the complainants therein. Until 
this sale should be made and the purchase-money 
collected and disbursed, it was a pending cause. 

Where lands were sold under a decree of the 
Chancery Court, and a lien retained to secure pur- 
chase-money, it was held thai a subpurchaser was 
not protected, by the statute of limitations against 
the enforcement of the lien. Judge McFarland, 
in that case, said as to such defense : 

" The lis pendens is notice to such a purchaser, 
and he takes subject to the jurisdiction and power 
of the Court to dispose of it, or make such de- 
crees in regard to it as it might have done had 
he not purchased, and that without notice of his 
purchase. The Court having acquired jurisdiction 
of the cause in the first instance for the sale of 
the property, still retains it for the purpose of 
enforcing its decrees for the payment of the pur- 
chase-money." Spenoe, ex parte, 6 Lea, 391. 

Upon the same ground, that the statute will not 
run against a right in litigation, it was held that 
the statute did not apply to the sureties upon the 
bond of an administrator appointed in the Chan- 
cery Court. Such sureties were held to be quasi 
parties to a pending suit, and therefore not pro- 
tected. Gold V. Bush, 4 Bax., 579. 

So the parties to a note executed to the Clerk 
in a pending cause were held to be quasi parties, 



APRIL TERM, 1892. 417 

Epperson 7/. Robertson. 

and not within the protection of the statute. 
Tyner v. FenneVy 4 Lea, 469. 

Here the plea of ten years is set up, not by a 
stranger, who, pending the litigation, had purchased 
the lands sought to be subjected, but by the de- 
fendant himself. Clearly a party to such a pend- 
ing suit cannot rely upon the statute to obstruct 
the execution of such a decree. Whether laches in 
the enforcement of the lien declared in such a 
decree would be a good defense when interposed 
by a stranger who had purchased ^pendente lite need 
not be discussed. 

The complainant who now sets up and relies 
upon the delay in the execution of the decree of 
sale, is in no situation to complain. This delay 
has been, as is clearly shown, at his own request 
and for his own benefit. 

The plea of the statute of seven years is also 
interposed. This rests upon the ground that com- 
plainant has been in possession, claiming and hold- 
ing for himself. Under the deed of his assignee in 
bankruptcy, for a period of seven years. This de- 
fense must fail for the reasons already stated as 
applying to the statute of ten years. 

There is no error in the decree, and it must be 

affirmed. 
27—7 p 



418 JACKSON : 



Fisher z: Baldridge. 



Fisher v, Baldridge. 
{Jackson. April 23, 1892.) 

1. Forcible Entry and Detainer. Tivo Justius may grant writs of 

certiorari and supersedeas in. 

Two Justices of the Peace have authority to grant writs of certiorari And 
supersedeas for removal of a case of forcible entry and unlawful 
detainer from the Justice's to the Circuit Court, at any time within 
twenty days after the rendition of the Justice's judgment therein. 

Code construed: §23842, 3843, 4093 (M. &V.); §§3126, 3127 (T. &S.). 

Cases cited and approved: Earl v. Rice, 10 Yer., 233; Vanleer r, 
Johnston, 8 Yer., 163. 

2. Repeal of Statutes. By implication not favored. 

Repeals of statutes by implication are not favored. Repugnancy 
between two statutes must be plain and unavoidable in order that 
the later repeal the earlier by implication. 

Example: The statutes permitted two Justices, within twenty days after 
the Justice's judgment, and Judges and Chancellors, at any time 
before execution of writ of possession, to grant writs of certiorari and 
supersedeas for removal of forcible entry and detainer cases from the 
Justice's to the Circuit Court. An Act was passed requiring y«fl^« to 
grant such writs within thirty days after the Justice's judgment. 

Held: This last Act did not repeal the statute permitting Justices to 
grant such writs within tw^ty days after judgment. 

Act construed: Acts 1869-70, Ch. 64. 

Case cited and approved: Frazier v. Railway Co., 88 Tenn., 138. 



FROM GIBSON. 



Appeal in error from Circuit Court of Gibson 

« 

County. John R. Bond, J. 



APRIL TERM, 1892. 419 

Fisher v. Baldridge. 

Neil & Deason for Fisher. 
Cooper & Harwood for Baldridge. 

LuRTON, J. This action was for unlawful 
detainer. It was begun before a Magistrate. 
There was judgment for the plaintiff'. The de- 
fendant applied for and obtained writs of certiorari 
and supersedeas y removing the ease to the Circuit 
Court. . Upon motion, the petition was dismissed, 
because granted by two Justices of the Peace. 
This was error. By Code (M. & V.), §3843, "two 
Justices of the Peace may, within twenty d^-ya 
after judgment, grant a certiorari and supersedeas to 
remove the proceedings of a Justice of the Peace 
to the Circuit Court." By Code (M. & V.), § 4900, 
stibsec. 8, power is, in general terms, conferred 
upon Justices. These provisions have been con- 
strued as extending to cases of forcible entry and 
unlawful detainer. Earl v. Rice^ 10 Yer., 233. 

The contention is, that, by the Act of 1869-70, 
Ch. 64, carried into the compilation of Milliken 
and Vertrees as §4093, the power to grant writs of 
certiorari and supersedeas in cases of forcible entry 
or unlawful detainer is limited and confined to 
the Judges of the State. The section, supposed 
by implication to take from Justices of the Peace 
this power, reads as follows : '' The proceedings 
in such actions may, within thirty days after the 
rendition of the judgment, be removed to the 
Circuit Court by writs of certiorari and supersedeas^ 



420 JACKSON : 



Fisher v. Baldridge. 



which it shall be the duty of the Judge to grant 
upon petition, if merits are sufficiently shown," 
etc. The argument is, that a Justice is not a 
Judge, and that, by this Act, none but a Judge 
may grant such writ. This does not necessarily 
follow. 

By the Code, as it stood before this amendment 
in 1869, either party might take such a cause into 
the Circuit Court upon writ of certiorari, at any 
time before the writ of possession was executed. Code 
(T. & 8.), §8362. 

But Justices of the Peace could not grant such 
writ unless application was made within twenty 
days after judgment. If a longer time had elapsed, 
the application was to be made to a Judge who, 
by the Code, could grant the writ in any civil 
case other than one of forcible entry or unlawful 
detainer at any time, and in the excepted class at 
any time before actual execution . of the writ of 
possession. Code (T. & S.), § 3842. 

The amendment limits the power of the Judge 
in granting such writ to a time within thirty days 
after judgment. It has no necessary effect upon 
the authority of two Justices to grant the writ 
if applied for within the shorter time permitted 
by the section of the Code relating to the power 
of Justices. 

The jurisdiction of Justices in this regard is 
not necessarily affected by the amendment. Re- 
peals by implication are not favored. The repug- 
nancy between two Acts must be plain and una- 



APRIL TERM, 1892. 421 

Fisher v, Baldridge. ' 

voidable to justify a repeal by implication. Sail- 
road V. Frazier^ 88 Tenn., 138, and cases cited. 

The inconveniences and hardships resulting from 
the hasty execution of writs of possession on Jus- 
tices' judgments in this class of cases, and the in- 
convenience of reaching a Judge within the time 
required before issuance of such writs, led to the 
granting of power to Justices to grant writs of 
certiorari and supersedeas. Vanleer v, Johnston^ 8 
Yer., 168. 

"While some of these inconveniences have been 
in part removed by improved facilities for rapid 
travel and by the increase in the number of Judges 
and Chancellors, yet many of them remain, and 
some of the hardships resulting from the speedy 
dispossession of an occupant have been increased 
by the late legislation permitting issuance of writs 
of possession, notwithstanding an appeal has been 
granted from the judgment of the Justice in such 
causes. 

A due consideration of these inconveniences, to- 
gether with the fact that there is no necessary 
repugnancy between the amendatory Act and the 
Act conferring the power on Justices in such 
cases, leads us to reverse the judgment of the 
Circuit Judge, and remand the cause for trial 
upon the merits. 



422 JACKSON" i 



Denning v. Todd. 



Denning v. Todd. 
{Jackson. April 23, 1892.) 

1. Administration. Whethernecessary or not. Qu<Ere, 

Can next of kin of an intestate recover the personal assets of his estate 
from a party wrongfully holding and wasting them without appoint- 
ment of an administrator, there being no debts against the estate? 

. The Court passes over this question, without expressing an opinion 
upon it. 

Cases cited : Thurman v. Shelton, lo Yer., 383 ; Brown v. ^ibb, 2 Cold., 
439; Brandon 7'. Mason, i Lea, 628; Christian zk Clark, 10 Lea, 630; 
Trafford v, Wilkinson, 3 Tenn. Ch., 451. 

2. Adminmstrator ad Litem. When appoinUd by Chancery Cqfirt. 

A contest arose between the estates of A and B over certain personal 
assets. D., the executor of B's estate, having taken possession of 
these assets, was sued by A's next of kin therefor. This suit was dis- 
missed upon demurrer assigning that only A's personal representative 
could maintain such suit. Then D. becaihe administrator of A's 
estate, being already executor of B's estate. Thereupon A's next of 
kin presented thtir affidavit, during the same term at which demurrer 
had been sustained, averring the foregoing facts, and that D. had 
become administrator of A's estate, and was using thai position to aid 
B's estate in wrongfully holding said assets, and praying appointment 
of administrator ad litem on A's estate. 

Held: The Chancellor should, upon these facts, have appointed an ad- 
ministrator <7r////^w/ that the practice of presenting the matter by 
affidavit was a proper one; and that the application, though^ made 
after dismissal of bill on demurrer, did not come too late, being made 
at same term. 

Acts construed: Acts 1889, Ch. 137. 



FROM CARROLL. 



Appeal from Cliancery Court of Carroll County. 
A. G. Hawkins, Ch. 



APRIL TERM, 1892. 423 

Denning v. Todd. , 

H. C. Towns, M. L. McKenzie, and H. C. 
Brewer for Denning. 

Charles M. Ewing for Todd. 

Caldwell, J. This is a bill for the distribution 
of a dead man's personal estate among his chil- 
dren. 

► Complainants allege that A. J. Denning died 
intestate, in Carroll County, on December 2, 1889; 
that he left certain personal property; that he 
owed no debts, and, therefore, administration had 
not been granted on his estate; that he had been 
twice married, and left surviving him his second 
wife and several children by each marriage; that 
his widow died, testate, on March 11, 1891; that 
S. W. Dunlap, her executor and son-in-law, had 
wrongfully taken charge of the personal property 
of which A. J. Denning died the owner, and as- 
sumed to sell the same as the property of his 
testatrix, when, in fact, no part of it belonged to 
her; that this sale was on time to various persons, 
and the purchase-money had not yet been paid; 
that Dunlap had, by ^the sale, been guilty of a 
conversion ; that he had given no bond and was 
insolvent. 

The bill was filed on May 8, 1891, by some of 
the children of A. J. Denning, deceased, against 
his other children, the executor of his widow, and 
the purchasers of property alleged to have been 
wrongfully sold by him. 

The prayer is for injunction to restrain the 



424 JACKSON: 



Denning ?'. Todd. 



executor from receiving and the purchasers from 
paying to him the price of the property so sold; 
for a proper reference and decree upon the facts 
alleged; and, finally, for a decree distributing the 
personal assets of A. J. Denning, deceased, among 
his children, and for general relief. 

Dunlap, the executor, and several other defend- 
ants demurred to the bill, upon the ground, as 
claimed bv them, that such a bill could be main- 
tained only by a personal representative of A. J« 
Denning, deceased. 

The Chancellor was of opinion that the de- 
murrer should be sustained and the bill dismissed; 
but, before his decree was entered, complainants 
moved the Court to appoint Elijah Denning, one 
of the complainants, administrator ad liteniy to the 
end that he might, in his representative capacity, 
become a party complainant, and prosecute the 
suit. 

In support of that motion and application, com- 
plainants introduced and read to the Court the affi- 
davit of sciiid complainant, Elijah Denning. After 
giving a historical statement of the litigation and 
steps taken therein, affiant states that defendant, 
8. W. Dunlap, had, after the filing of the de- 
murrer, wrongfully and without the knowledge of 
affiant or his counsel, procured himself to be ap- 
pointed administrator of A. J. Denning, deceased; 
that " said Dunlap, as affiant is informed and be- 
lieves, declines to permit his name to be used as a 
party complainant to this suit, as the administrator 



APRIL TERM, 1892. 425 

Denning p. Todd. 

of A. X Denning, and- by this means is endeav- 
oring to defeat complainants in their right of 
action, and deprive them of their just rights;" 
that " the interest of said Dunlap, as executor of 
Mary Denning, deceased, is adverse to and in con- 
flict with his interest as administrator of A. J. 
Denning," deceased; and that he, "as executor, is 
seeking to withhold from himself," as administrator, 
property which rightfully belongs to him in the 
latter capacity alone, and in which complainants 
are directly interested as distributees of A. J. 
Denning. 

The Chancellor overruled this motion, refused to 
appoint an administrator ad liteniy and caused his 
decree sustaining the • demurrer and dismissing the 
bill to be entered. 

Complainants made a proper bill of exceptions, 
and brought up the whole case by appeal. 

Counsel for appellants assail the action of the 
Chancellor on two points. It is insisted, first, that 
the demurrer is not good in law; and, secondly, 
that an administrator ad litem should have been 
appointed, and the ground of demurrer thereby 
obviated. 

First. — Without expressing an opinion upon the 
demurrer, we pass it with a mere citation of some 
of the authorities relating to the question therein 
made: Thurman v. Shelton^ 10 Yer., 383; Brown 
V. Bibb, 2 Cold., 439; Brandon v. Mason, 1 Lea, 
628, 629; Christian v. CtorA, 10 Lea, 630; Trafford 
V. Wilkinson, 3 Tenn. Ch., 451. 



426 JACKSON : 



Denning z\ Todd. 



Second, — The second iusistence is well made. 
Complainants presented a clear and strong case for 
the appointment of an administrator ad litem. 
The statute on this subject is as follows: 

"That in all proceedings in the Probate and 
Chancery Courts, and any other Courts having 
chancery jurisdiction where the estate of a de- 
ceased person must be represented, and there is 
no executor or administrator of such estate, or the 
executor or administrator thereof is interested adversely 
thereto, it shall be the duty of the Judge of the 
Court in which such proceeding is had to appoint 
an administrator ad litem of such estate for the 
particular proceeding. * * * Such ap- 
pointment shall be made whenever the facts ren- 
dering-it necessary .shall appear in the record of 
such case, or shall be made known to the Court by 
the affidavit of any person interested th^reinJ^ Acts 
1889, Ch. 137, Sec. 1. 

We have italicized the words of the statute 
especially applicable to the facts of this case. 

Complainants brought themselves entirely within 
the letter and spirit of the law, both in the mat- 
ter of practice and in the disclosure of merits. 
The facts upon which the appointment of an ad- 
ministrator ad litem was sought were " made known 
to the Court by the affidavit of" a "person inter- 
ested" in the subject-matter of the litigation; and 
those facts disclosed, unmistakably, that Dunlap, 
the regular administrator of A. J. Denning, de- 
ceased, was "interested adversely" to the estate 



APRIL TERM, 1892. 427 

Denning ?'. Todd. 

of his intestate. Holding and claiming the assets 
as executor of Mary Denning, his interest in that 
capacity was necessarily adverse to the estate of 
A. J. Denning, of which he was administrator. 
He could not serve two masters at one and the 
same time. 

The adverse interest contemplated by the stat- 
ute is not merely a personal interest, but any in- 
terest which may prevent the executor or admin- 
istrator from fully and fairly representing the estate 
of his testator or intestate. 

Though the motion and application were not 
made until after the hearing on demurrer — being 
made at the same term — they should have been 
granted, to. prevent justice from being defeated. 

Reverse and remand for appointment of admin- 
istrator . ad litem, amended and supplemental bill, 
and further proceedings. 



428 JACKSON : 



Railroad v, Meacham. 



Railroad t?.. Meacham. 
{Jackson. April 23, 1892.) 

1. Railroads. Measure of liability to trtspassers on trains. 

Railroad company owes no duty to an intruder upon its train engaged 
otherwise than in transportation of passengers, except to refrain from 
willfully, wantonly, oi* intentionally injuring him. It is not liable for 
injury resulting incidentally to such intruder from the mistake, in- 
advertence, or negligence of its servants in operating such train. 

2. Same. Sanu, Who is a trespasser. 

And a person is a trespasser, who, without invitation of an authorized 
agent, and without payment of fare, takes passage upon a timber- 
train, which is forbidden to carry other than those engaged in the 
shipment of lumber, he not being of that class. 

Case cited and approved : Railroad v, Wilson, 88 Tenn., 316. 

3. Same. Case in judgment. 

The plaintiff, without invitation or payment of fare, was traveling upon 
a timber-train, forbidden to carry passengers, upon defendant's road. 
In a collision, brought about by the negligence of defendant's serv- 
ants in operating this timber-train, the plaintiff, in leaping from the 
train, was injured. 

Held: The plaintiff was a trespasser, and not entitled to recover, except 
for willful, wanton, or intentional injury by defendant, and the Court 
should have so instructed the jury. 



FROM WEAKLET. 



Appeal in error from Circuit Court of Weakley 
County. W. H. Swiggart, J. 



APRIL TERM, 1892. 429 

Railroad v. Meacham. 

Joseph E. Jones for Railroad. 
Charles M. Ewing for Meacham. 

Lea, J. This action was brought in the Cir- 
cuit Court of Weakley County by James M. 
Meacham* to recover damages alleged to have been 
sustained by him as the result of an injury in- 
flicted on him by reason of a collision of two 
trains. It is alleged that the injury inflicted was 
cansed by the carelessness and negligence of the 
employes, agents, and servants of the railroad 
company in charge of and operating said trains. 

The train upon which defendant in error was 
riding," and in jumping from which he was in, 
jured, was a timber-train, upon which no persons 
were allowed to be carried except the employes 
of the train, the timber contractor, and his hands 
engaged in loading the cars. There is no pretense 
that defendant in error was either. He was not 
on the train by invitation of any one who had 
authority to invite him, nor did he pay any fare. 

The Court, among other things, charged: 

"If you find that the plaintiff* was a trespasser 
on defendant's train engaged in taking of timbers, 
and going from McConnell to Martin, and while 
said train was making said trip on the defendant's 
line of road a collision occurred between said 
train going south and another train of defendant 
going north, and which was moved and operated 
by the servants of the defendant, and a wreck was 



430 JACKSON : 



Railroad 7'. Meacham. 



thereby caused, and that said collision was the di- 
rect or proximate result and consequence of the 
negligence, carelessness, or recklessness of the de- 
fendant's servants engaged in moving and operating 
said trains, or either one of them, and that the 
plain tift* was compelled to jump from said train to 
the ground just before said collision occurred, and 
that he received the injury as charged in the -sev- 
eral, counts in the declaration by reason' or said 
jumping from said train under such circumstances, 
and that the plaintiff* himself was acting in a 
prudent and cautious manner while so on said 
train so far as his safety was concerned, and that 
he was not guilty of any other fault or negli- 
gence tending to contribute to the injury, except 
the mere fact that he was on the train without 
any right to be thereon, then, under such circum- 
stances, he would have the right to recover, not-r 
withstanding the fact that he may have been a 
trespasser on defendant's train." 

And he further adds : " Yet, if the plaintiff" was 
on the train wrongfullj^, and was a trespasser, it 
would be the duty of defendant's servants, while 
so operating and moving said train, to use ordi- 
nary care and prudence to prevent an accident or 
injury to plaintiff', such as would be ordinary and 
reasonable under the circumstances." 

This charge was erroneous. The defendant in • 
error being an intruder upon the train, plaintiff' 
in error owed him no such duty as to render it 
liable for the mistake, inadvertence, or negligence 



APRIL TERM, 1892. 431 

Railroad v. Meacham. 

of its employes. The only duty due by the rail- 
road company to one who \^ an intruder upon its 
train not used for transporting passengers, is to 
refrain from wantonly, willfully, or intentionally 
injuring him. If the proof had developed that 
the collision in this case was designed and brought 
about with the intent and for the purpose of in- 
juring the defendant in error, although an intruder, 
he would be entitled to recover, otherwise he would 
not. 

In case of Railway Co, v. Wilson^ AdmW^ 88 
Tenn., it was determined by this Court that a 
baggage-master, who had l^ft his baggage-car and 
got upon the engine, and in a collision — by the 
negligence of the engineer of the other colliding 

 

train — was killed, his administrator could not re- 
cover, because he was an intruder upon the engine. 

The text-books and opinions of the Courts of 
quite a number of the States have been uniform 
that the company owed no duty to an intruder 
upon its freight-trains upon which passengers were 
not carried, except the duty not to wantonly or 
willfully injure him. Rorer on Railroads, Vol. II., 
1113, Sec. 19; Am. and Eng. R. R. Cas., Vol. IV., 
599. 

The judgment is reversed and cause remanded. 
The defen<iant in error will pay cost. 



432 JACKSON : 



Collins V, Insurance Co. 



Collins v. Insurance Co. 
{Jackson. April 28, 1892,) 

I. Chancery Practice. Suit commenced^ 7vhen, 

Suit in equity is commenced at date of filing bill and giving cost bond 
in such sense that the running of statutes of limitations is thereby 
arrested. 

Code construed; §5055 (M. & V.); 24312 (T. & S,). 

Cases cited and approved: State v. Keller, 11 Lea, 399; Montgomery 
V, Buck, 6 Hum., 416 ; Carter v, Wolfe, 1 Heis., 695. 



2. Same. Same, Res adjudicata. 

And this question, having been adjudicated upon an appeal from a 
decree overruling demurrer properly raising it, is res adjttdicata upon 
the hearing of the same case on appeal from final decree upon the 
merits. 



3. Same. Abandonment of suit. Laches, 

The defense that a suit in equity has beeu abandoned by reason of 
laches in its prosecution, must be made by motion or plea, and is 
waived by answer to the merits. 

4. S\ME. Same, Same. 

If the respondent avers certain matters in pais as constituting an aban. 
donment of the suit by laches, the complainant may, without further 
pleading, rebut such defense. 

5. Same. Same, Same, 

In this case delay of three years in issuance of process, after bill filed 



APRIL TERM, 1892. 433 

Collins V. Insurance Co. 

and cost bond given, is held not to operate as an abandonment of 
the suit. 



FROM GIBSON. 



Appeal from the Chancery Court of Gibson 
County. H. J. Livingston, Ch. 

Cooper & Harwood for Collins. 

Pitts, Hays & Mbeks for Insurance Co. 

W. A. Henderson, Sp. J. This bill was filed in 
the Chancery Court at Humboldt, on November 28, 
1884, as appears by the indorsement thereon of 
that date by the Clerk and Master of that Court. 
Accompanying the bill, and indorsed thereon, was 
an indorsement by Mr. Hill, the solicitor, in ac- 
cordance with a common practice, that he would 
be responsible for costs in that case. 

The transcript shows no further step taken in 
the case until November 16, 1887, an interval of 
some three years, when the then Clerk and Master, 
acting upon the aforesaid acknowledgment of sure- 
tyship, filled out a formal prosecution bond, and 
issued subpoena to answer, which was on that day 
properly executed as to the said insurance com- 
pany. 

28—7 V 



434 JACKSOK : 



Collins r. Insurance Co. 



On April 10, 1888, the defendant filed its de- 
murrer, by which it raised the question whether 
the case was barred by failure to bring suit within 
twelve months, as provided for in the policy of 
insurance, contending that suit had not been begun 

ft 

on November 28, 1884, when the bill had been 
\ filed, but only on November 16, 1887, when pro- 
cess had actually issued. 

The Chancellor was of the opinion that said 
demurrer was not well taken, and the same was 
overruled, with leave to appeal. This question 
was fully and ably presented to this Court at a 
former term, when the action of the Chancellor 
was affirmed. In that action of the Court, Judge 
Snodgrassj of the present Bench, did not concur. 
In the decree of affirmance, it was recited that this 
Court did " not pass upon the effect of any laches 
or lapse of time between the filing of the bill and 
the suing out of process thereon, if any intervened," 
that question not being before the Court on de- 
murrer. 

On the case being remanded to the Chancery 
Court, the respondent entered no motion to dismiss, 
nor filed any plea as to laches nor lapse of time, 
but filed its answer as to the merits, and also 
attempted in said answer to again raise the ques- 
tion as to the bar of limitation. 

By the action of this Court on the demurrer, 
as above recited, this question is res adjudicata 
against the respondent, and, by that means, is the 
law of this case. 



APRIL TERM, 1892. 485 



Collins V. Insurance Co. 



On this question, whether a suit in equity is 
begun by the filing of a bill and securing costs, 
or whether it remains unbegun till process is sued 
out, to be i^gularly served, able and exhaustive 
arguments have been offered us in this case. Much 
contrariety of authority may be adduced, drawn 
largely from States having Code practice, and 
based, doubtless, upon their own statutes; but we 
are of the opinion, based upon the equity practice 
of this State, and upon the sounder authorities, 
that in Tennessee a case in equity is begun, has 
a status in Court, upon the filing of a bill and 
securing costs as provided by statute; always pro- 
vided that it is done in good faith. 1 Daniel's 
Ch. PL, 399; State v. Kellar, 11 Lea, 399; Mont- 
gomery v. Bank, 6 Hum., 416; 1 Heis., 695; Code 
(M. & v.), §5055; Gibson's Suits in Ch., 166. 

Again: The respondent, in its answer, alleges 
facts upon which it bases a defense of abandon- 
ment, and its solicitor plausibly contends that these 
allegations cannot be met by the complainant ex- 
cept by amended bill; that, upon this defense, 
there may be an issue in the pleadings, to which 
we reply — 

First, — The defense of abandonment or laches in 
prosecution can only be made by motion to dis- 
miss, or by appropriate plea. An answer to the 
merits waives and passes beyond such defense. 

Second. — While it is true, as a general rule of 
equity pleading, that where a respondent discloses 
a defense such as a deed, acquittance, license, or 



486 JACKSON : 



Collins V, Insurance Co. 



accord and satisfaction, and the complainant desires 
to attack that defense, he must do so by appro- 
priate pleadings, so as to form an issue, yet, when 
the respondent alleges certain facts from which it 
is assumed such defense as relied on in this case 
flows, then, without further pleadings, the com- 
plainant may establish by evidence that such as- 
sumption does not follow, because the respondent 
has not given the facts, or all the facts, of that 
subject-matter. 

We are of the opinion that this case falls 
within the latter category, and that the respond- 
ent has failed to make good his contention that 
there has been such laches or abandonment as 
should defeat this suit. 

These questions out of the way, the respondent 
makes no contention as to its liability on the 
policy sued on. 

The decree of the Chancellor having been in 
accord with the principles herein recited, is correct, 
and is in all things affirmed, with costs. 



APRIL TERM, 1892. 437 



Morton v. State. 



Morton v. State. 
{Jackson. April 28, 1892.) 

1. Criminal Law. Punishme^tt for felonious assault, 

M. was convicted of an assault with intent to commit voluntary.man- 
slaughter, and sentenced to one year's imprisonment in the peniten- 
tiary. No Bne was imposed. The statute provides that persons 
convicted of this class of offenses shall **ht punished by imprison-, 
ment in the penitentiary not exceeding Hve years, or by imprison- 
ment in the county jail not more than one year and by fine not 
exceeding five hundred dollars, at the discretion of the jury." 

Held: The judgment is valid. If imprisonment in the penitentiary 'is 
inflicted, no fine should be imposed; but in case of imprisonment in 
county jail, fine should be imposed in addition. 

Code construed: § 5379 (M. & V.) ; ^4630 (T. & S.). 

Cases cited and approved: McDougal v. State, 5 Bax., 661 ; Hayes v. 
State, 15 Lea, 65; Delacy v. Stale, 8 Bax., 401; Clark v. State, 86 
Tenn., 512; Rafferty z'. State, /(7j/, /. — . 

Cited and distinguished: Ragsdale v. State, 10 Lea, 671. 

2. Criminal Practice. Omission in Courts charge erroneous^ but not re 

versible^ when. 

Upon trial of a defendant under an indictment for felonious assault, 
the Court charged the jury correctly that they might convict him of 
simple assault, and that if they did so, and thought the offense 
merited a fine of more than fifty dollars, ihey should assess it. The 
Court omitted to instruct the jury as to their duty if they should find 
the defendant guilty of simple assault and think his offense merited 
a fine of less than fifty dollars. 

Held: This omission constitutes error, but not reversible error, in a case 
where the defendant is convicted of tlie felonious assault and sen- 
tenced to the penitentiary. 

Code construed: §§6062, 6078 (M. & V.); ?jJ 5223, 5237 (T. & S.). 

Case cited and approved: Tarvers v. State, 90 Tenn., 499. 



438 JACKSON: 



Morion v. State. 



3. Evidence. Res gestae , Declarations of third persons. 

Upon a trial for felonious assault, where the defendant insists that he 
fought in defense of himself and his wife's mother and sister against 
the assaults of the prosecutor and his wife, it is error to reject evidence 
offered on behalf of defendant that some one in the crowd exclaimed 
during the encounter: *'Kill him! Don't let that nigger get back to 
the bottom. Kill him!" although the witness is unable to name 
the person who made the exclamation. This evidence is admissible 
as part of the res gestie^ and as tending to explain defendant's danger 
and situation. 



FROM GIBSON. 



Appeal in error from Circuit Court of Gibson 
County. ' John R. Bond, J. 

Cooper & Harwood for Morton. 

Attorney-general Pickle and L. H. Tyree for 
State. 

Caldwell, J. John Morton, plaintiff' in error, 
was inclicted for an assault with intent to commit 
murder in the second degree. The trial jury 
found him guilty of an assault with intent to 
commit voluntary manslaughter, and assessed his 
punishment '^ at one year in the penitentiary." 
After overruling motions for new trial and in 
arrest, the Circuit Judge pronounced judgment in 
accordance with the verdict. Morton appealed in 
error. 

It is earnestly contended, in behalf of the pris- 



APRIL TERM, 1892. 439 



Morton v. State. 



oner, that the verdict and judgment are without 
authority of law, and absolute nullities, because 
they limit the punishment to imprisonment alone, 
and do not also impose a fine as a part of the 
punishment. 

The statute under which the indictment was 
found and the conviction had is as follows: ''If 
any person assault another with intent to commit, 
or otherw^ise attempt to commit, any felony or 
crime punishable by imprisonment in the peniten- 
tiary, where the punishment is not otherwise pre- 
scribed, he shall, on conviction, be punished by 
imprisonment in the penitentiary not exceeding live 
years, or by imprisonment in the county jail not 
more than one year and by fine not exceeding 
five hundred dollars, at the discretion of the jury." 
Code (T. & S.), §4630. 

The insistence that this language requires the 
infliction of both fine and imprisonment in every 
case of conviction is accorded the merit of plausi- 
bility; yet, such is not the more reasonable con- 
struction. To our minds, the true and obvious 
meaning of the statute is that the convict shall 
be punished either by imprisonment in the peniten- 
tiary^ without more, or by imprisonment in the 
county jail and fine; and, whether the one mode 
or the other shall be adopted is left to the dis- 
cretion of the jury. If they think the crime 
merits confinement in the penitentiary, they must 
impose a sufficient term of imprisonment, not ex- 
ceeding five years, to embrace the whole scope 



440 JACKSON : 



Morton r. State. 



of punishment and cover the whole case ; or, if 
they deem other punishment more in consonance 
with the demands of justice in the particular 
case, they may fix a term of imprisonment in the 
county jail . not more than one year, and add to 
that a fine not exceeding five hundred dollars. 

By a fair transposition of the last clause of the 
statute, all possible ambiguity is removed. This is 
illustrated in McDougal's case, where this Court, 
speaking through Judge Deaderick, said that an 
ofi^ense under this statute "is punishable by con- 
finement in the penitentiary not exceeding five 
years, or, in the discretion of the jury, [by] im- 
prisonment in the county jail for not more than 
one year, and by fine not exceeding five hundred 
dollars." McDoitgal v. State,, 5 Bax., 661. 

Numerous judgments upon just such verdicts as 
the one before us have been affirmed by this Court. 
See Hayes v. State^ 15 Lea, 65; DeLacey v. State, 8 
Bax., 401; Clark v. State, 2 Pickle, 512; Rafferty 
V. State, post, p. — (S. C, 16 S. W. R., 728). 

In each of those cases a conviction was had 
and enforced under the statute here construed, 
though in each of them there was a penitentiary 
sentence without fine. It is proper to observe fur- 
ther, in reference to those cases, that the question 
here debated was not mentioned by the Court in 
any of them. They are not referred to as express 
decisions of that question, but as strongly persua- 
sive of the correctness of our interpretation of the 
law. 



APRIL TERM, 1892. 441 

Morton v. State. 

Ragsdale's case is cited as authority for a con- 
trary construction. The decision there made is 
fairly stated in the head-note, as follows : 

" Where the verdict in a criminal case is not 
warranted by law, no valid judgment can be ren- 
dered on it — as, where the jury assess the pun- 
ishment at a fine when the law prescribes both 
fine and imprisonment for the particular offense — 
and the judgment will be reversed upon appeal by 
the State, and the cause remanded for new trial." 
The State v. Ragsdale^ 10 Lea, 671. 

In that case the jury found Kagsdale guilty of 
an assault with intent to commit murder in the 
second decree, and assessed his punishment at a 
fine of $500, without more. The trial Judge re- 
duced the fine to $75, and rendered judgment for 
the latter sum. In the conclusion of the opinion, 
the Court said: "The punishment prescribed by 
the statute is both imprisonment and fine." /6., 
673. 

Though that language is general, and may well 
be said to embrace both jail and penitentiary pun- 
ishments, it does not expressly state or decide the 
question raised here. Whether a penitentiary sen- 
tence, without fine, could be sustained under the 
statute was not in terms decided ; nor does it 
affirmatively appear from the opinion that such a 
question was considered by the Court. 

Tliat the Court^ has not since understood that 
question to have been so decided in that case, 
seems to follow from the fact that in three later 



442 JACKSON: 



Morton 7f. State. 



cases (15 Lea, 65; 2 Pickle, 512; 16 S. W. R., 
728), a contrary construction has been practically 
applied in the affirmance of penitentiary sentences 
with which fines were not assessed as a part of 
the punishment. 

If that was a, case for the infliction of a $500 
fine, as the jury found it to be, then, as a part 
of the punishment, the statute required that im- 
prisonment be imposed also — that imprisonment, 
however, to be in the county jail. In that view 
the decision was right; and to that view it is now 
limited. 

The trial Judge properly instructed the jury 
that the defendant might be convicted of a mere 
assault, if they should believe from the evidence 
that he was guilty of that offense (Code, T. & S., 
§5228); and, with respect to the punishment there- 
for, he said: "If you find him guilty of an as- 
sault simply, and should be of opinion that his 
oftense merits a fine of more than fifty dollars, 
you will fix the fine and report it with your ver- 
dict." What return they should make, or what 
punishment would follow, in case they found him 
guilty of a simple assault and thought his ofl:ense 
did not merit a fine of more than fifty dollars, 
the jury were not informed. 

In the conclusion of the charge, His Honor 
said: '*If you find the defendant guilty of any 
one of the ofl:eiises herein defined [naming assault 
with intent to commit murder in the second de- 
gree, assault with intent to commit voluntary 



APRIL TERM, 1892. 448 

Morton z*. State. 

manslaughter, and simple assault], you will fix his 
punishment within the limits hereinbefore directed." 

Not having previously given the jury direction 
as to any punishment for a simple assault, except 
by fine in excess of fifty dollars, the latter instruc- 
tion was tantamount to telling them that such of- 
fense was punishable alone by fine of more than 
fifty dollars, and that if they should find him 
guilty of such offense, they must assess his fine 
accordingly. 

This was, erroneous and misleading; the law 
being that a jurj^ finding a defendant guilty of a 
simple assault, and believing that he does not merit 
a fine of more than fifty dollars, may merely re- 
turn a verdict of guilty, and leave the Court to 
assess the punishment. Const., Art. VI., Sec. 14; 
Code (T. & S.), §5237. 

But having been convicted of a higher grade of 
offense, the prisoner can take no advantage of that 
error. It is entirely immaterial, and affords no 
ground of reversal, since the jury found him guilty 
of an assault with intent to commit voluntary man- 
slaughter, and the erroneous instruction related 
alone to the punishment of a mere assault. Tarvers 
V. State, 6 Pickle, 499. 

The defendant was several miles from home, at 
church, when the difficulty in which he is said to 
have cut the prosecutor occurred. His theory of 
the matter, before the jury, was that he fought in 
self-defense, and in protection of his wife's mother 
and sister, whom he insists had boon and were 



444 JACKSON : 



Morton v. State. 



beiijg assaulted and abused by the prosecutor and 
his wife. In support of this theory, he sought to 
prove various facts, among them, that during the 
rencounter some one in the crowd was heard to say 
of the defendant: "Kill him! kill him! don't let 
that nigger get back to the bottom. Kill him!" 
He offered to prove by Polly Mack, who was pres- 
ent and witnessed the difficulty, that she heard 
some one in the crowd make this exclamation. 

The Court rejected the evidence as incompetent 
because the witness was not able to st^-te who used 
the language. 

This ruling was erroneous. The rejected evidence 
was clearly competent as a part of the res gestm^ 
and as tending to show great hostility toward the 
defendant and the danger to which he was exposed. 

Two other witnesses were afterwards allowed to 
state that they heard Smiley Jennings use the 
language in question; but that did not cure the 
error, for the defendant was entitled to the broad- 
est proof he could make on that subject. Besides, 
the evidence of those two witnesses seems to have 
been admitted alone for the purpose of contradict- 
ing Smiley Jennings, one of the State's witnesses, 
who had previously denied the use of such lan- 
guage by himself. 

Reversed and remanded. 



APRIL TERM, 1892. 445 



State V, Railroad. 



State v. Railroad. 
{Jackson. April 28, 1892.) 

1. Railroads. Indictable for obstructing highway. 

Doctrine re-afHrmed that railroad corporations are liable to indictment 
for obstructing th« public roads. 

Case cited and approved : Railroad v. State, 3 Head, 523. 

2. Same. Sanu, Defense, 

A railroad corporation, indicted for obstructing a public road by per- 
mitting its train to stand across the road for an unreasonable length 
of time, cannot defend itself by showing that its servants engaged in 
the operation of trains were forbidden by its general rules and regu- 
lations to permit trains to remain across public roads for an unreason- 
able time. For such acts of its servants, done within the scope of 
their duty, the corporation, though forbidding the acts, is criminally 
responsible. 



FROM GIBSON. 



Appeal in error from Circuif Court of Gibson 
County. J. R. Bond, J. 

Attorney-general Pickle and M. B. Gilmore for 
State. 

W. J. McFarland and McCorry & Bond' for 
Railroad. 



446 JACKSOX : 



V 



V 



State 7'. Railroad. 



LuRTON, J. A train of cars was permitted to 
stand across a public county road for an unreason- 
able length pf time, thereby impeding the use of 
the road by the traveling public. The corporation 
was indicted and found guilty of a public nui- 
sance, and fined in the sum of fifty dollars. Upon 
the trial it was admitted by the State that, under 
the rules and regulations of the company, its em- 
ployes in charge of its trains were prohibited from 
permitting trains to stand across a public road in 
such manner as to obstruct travel for more than 
five minutes. In the instance relied upon by the 
State, the train had been permitted to stand across 
a public road for from twenty to thirty minutes. 

The Circuit Judge instructed the jury that the 
fact that this obstruction was for a longer time 
than permitted by its rules and instructions, was 
no defense against the indictment. This is as- 
signed as error. 

That railway corporations are liable to indict- 
ment for obstructing a public highway has been 
long settled. L. Sf N. E, R. Co. v. The State, 3 
Head, 523. 

/Being a corporation, it necessarily acts only 
through its agents.' If the obstruction is the act 
of its agent, it is the act of the corporation; pro- 
vided the agent did the act in the course and scope 
of his duty as an agent. It is immaterial that tlie 
agent was, by the rules of the company, instructed 
not to permit such obstruction to continue for a 
time deemed by the corporation to be unreasonable. 



APRIL TERM, 1892. 447 

State V. Railroad. 

If such agent disobeys the reasonable require- 
ment of the corporation, it becomes liable for the 
nuisance, because the agent was within the scope 
of his duty in operating the train and in stopping 
it across a public road. ^ This principle is necessary 
to be enforced in regard to acts of misfeasance 
by corporations of this character. Otherwise, the 
public would be required to look alone to subor- 
dinates, in general unknown and irresponsible. J 2 
Woods Railway Law, pp. 1383, 1384, and author- 
ities cited. 

Affirm the judgment. 



448 JACKSON : 



Jackson r*. Pool. 



Jackson v. Pool. 



{Jackson. April 28, 1892.) 



I. Jury. Resident and tax-payer of city cofttpetent in suit against city. 

Residents and tax-payers of a municipal corporation are not disqualified, 
by reason of their relations to the corporation, to sit upon a jury in a 
case to which the corporation is an interested party. 

Cases cited and approved: Mayor, etc., v. McKee, 2 Yer., i68; Ezell v. 
Giles County, 3 Head, 586. 



2. Same. Abuse of Judge* s power to order special jury. 

It is an abuse of the Judge's power to order a special jury, for which 
reversal will be had, \yhere he directs the jury to be selected by the 
Sheriff and summoned from the county outside the limits of a partic- 
ular city, the persons residing in and outside such city being equally 
competent. 

Code construed : § 4805 (M. & V.) ; \ 4029 (T. & S.). 

Cases cited: Clingan v. Railroad, 2 Lea, 726; Mayor, etc., v. Sheperd, 
3 Bax., 373. 



Evidence. Of city^s wealth incompetent in suit against it for personal 
injuries. 

In suit against a municipal corporation for personal injuries sustained 
by reason of defect in sidewalk, it being clearly a case in which 
punitive damages could not be awarded, evidence is not admissible 
on behalf of the plaintiff to show the value of the property owned 
by the corporation, or the assessed value of property situate in the 
city, or the amount of salary paid to the Mayor of the city. 



4. Same. Same. No reversal without specific exception. 

But reversal will not be had for the erroneous admission of such incom- 
petent evidence, unless the record shows that specific exception was 
taken to its competency. 



APEIL TERM, 1892. 449 

■* .     ^ -■ ■* ..I .   -■■ -    ■!■!■ I   ^H^^^l— .l^— i^ 

Jackson v. Pool. 

5. Same. Introduction of things as proof , 

Xx is competent for the parties to exhibit to Coiirt and jury, as matter 
of proof ancillary to other testimony, persons, models, and things 
not cumbrous, whenever the inspection of them may tend to the dis- 
covery of the truth of the matter in controversy. Whether the 
articles offered are too cumbrous, is a question addressed to the trial 
Judge's discretion. This Court declines to revise the action of the 
trial Judge in this case in excluding the portion of the sidewalk, 
consisting of two planks and cross-bars, on account of defects in 
which the plaintiff was injured. 

6. Argument of Counsel. When tiot cause for r,ev^r5al. 

Unless this Court can see that improper argument of counsel probably 
influenced the action of the jury, there will be no reversal on that 
account, even when proper exception was taken thereto. 

7. Same. Same, Example. 

In suit against city for personal injuries, the plaintiff's attorney, in his 
closing argument, said: ''If one of you should come to town and 
violate one of  the ordinances of the city government by any dis- 
orderly conduct, you would see how quick you would be arrested and 
carried before Mayor Gates and fined." This was objected to. It 
was said in reply to this language of defendant's attorney: **If you 
give a verdict against the defendant in such trivial cases as this one, 
you will place a burden upon our young city that it will not be able 
to bear * * * it would bankrupt and ruin the city to require it 
to keep all its streets and sidewalks in perfect repair." 

Held: Argument of plaintiff's attorney does not constitute reversible 
error. 



8. Same. Jtuige's action upon exception erroneous. 

But the Court's ruling upon the exception, ♦'that the matter of fines 
was one source of revenue for the city," is error. 

9. Same. Reading opinions of Courts in cases giving large damages. 

It constitutes reversible error for the Court to permit the plaintiff's 
attorney in a personal injury. case to read, over objection of defend- 
ant's attorney, opinions from the reports in cases where large damages 
were awarded, for the sole purpose of influencing the jury in fixing 
amount of damages. In this case the Court declines to express an 
opinion as to whether the reading of such cases from the reports, over 

29—7 p 



450 JACKSOIf : 



Jackson 7\ Pool. 



objection, is error, the counsel having stated the cases were read for 
another purpose, and the Court having properly instructed the jury 
that they should not be influenced by them in fixing amount of dam- 
ages. 



lo. Charge of Court. ErroMeous as io city's liability for latent defects in 
sideivalks. 

In suit against a city for personal injuries sustained by the plaintiff 
while passing over a common plank sidewalk laid upon the ground, 
by reason of an alleged defect therein, there being proof tending to 
show the defect was latent, it is error for the Court to charge that the 
city was liable, though the defect was latent, if it could have been 
discovered by "inspection, observation, or otherwise." This strong 
doctrine is not applied to latent defects in common sidewalks, but 
only to defects in structures over dangerous places. 



FROM MADISON. 



Appeal in error from Circuit Court of Madison 
County. Levi S. Woods, J. 

Caruthbrs & Mallory for Jackson. 

J. M. Troutt .and Haynbs & Hays for Pool. 

Lea, J. This is an action for damages against 
the city, brought by defendants in error for inju- 
ries to Mrs. Pool by having her arm broken, be- 
ing thrown down by a defective plank-walk. 
There was a verdict for plaintiffs below, and de- 
fendants appealed. 



APRIL TERM, 1892. 461 

/ 

Jackson v. Pool. 

!■ I I  |- 

A number of errors are assigned: First, that 
upon motion of plaintiffs, without cause shown, 
the Sheriff' was ordered by the Court to summons 
as jurors citizens from the country, and not to 
summons tax-payers or residents of the city of 
Jackson ; and that A. P. Moore, one of the ju- 
rors so summoned, was ordered by the Court to 
stand aside because he was a citizen of Jackson, 
though not a tax-payer. These orders of the 
Court were over the objection of the defendants. 

The question is presented whether a tax-payer 
or resident of a municipal corporation is a com- 
petent juror in a suit, b^ or against the corpo- 
ration, having no individual interest in the subject 
of the suit. The object of the law is to secure 
a fair and impartial trial, and, to this end, to se- 
cure fair and unbiased jurors. It is said in argu- 
ment that there has been no direct adjudication 
of this exact question in this State. While this 
may be true, the same has been indirectly decided, 
and has never been questioned, so far as w^e are 
aware, since the decision of this Court in Mayor 
and Aldermen of Jonesborough v. Adam McKee, 2 
Yer., 168, where it was held that Magistrates who 
w^ere residents of a municipal corporation are not 
incompetent to issue warrants and try causes in 
which the corporation is interested if they have 
no individual interest in the subject of the suit. 
If not incompetent to try suits for or against the 
corporation, then certainly they would not be in- 
competent jurors to try the same. When the case 



452 .TACKSOX : 



Jackson f. Pool. 



in 2 Yer., 168, was decided, our statutes made 
every one having any interest in a suit incompe- 
tent to testify therein ; yet, in that case, it was 
decided that in all questions respecting the rights 
and immunities of a municipal corporation, indi- 
viduals, though members of the corporation, were 
not incompetent witnesses. 

In JEzell V. Justices of Giles County, 3 Head, 
286, it was held that, in a suit against, the county, 
a Justice was a competent witness in the suit, his 
interest being too remote and contingent, as well 
as too mi ante, to disqualify him. 

The suit is against the corporation, and cot 
against citizens of the corporation, and, in the' ab- 
sence of some individual interest, we hold that the 
fact that a person is a resident or tax-payer of a 
municipal corporation does not render him incompe- 
tent as a juror in a suit by or against the corpo- 
ration. If they are incompetent as jurors, so would 
a recorder of a town or city be incompetent to 
try a corporation case, and so would a Judge be 
incompetent to hear and determine a case in which 
the city of his residence was a party. But it is 
insisted that by the Code, § 4805, it is provided 
that a special jury may be ordered, upon motion 
of either party in any civil action, if, in the opin- 
ion of the Court, it is proper; and that it has 
been held that the Judge may designate the per- 
sons to be summoned, and his discretion in order- 
ing a special jury will not be revised. Clingan v. 
R, JK., 2 Lea, 726, 727. 



APRIL TERM, 1892. 453 



Jackson v. Pool. 



If the Judge had ordered a special jury, as 
authorized by statute, or had designated who should 
be summoned, then his discretion would not prob- 
ably be revised, nothing else appearing. But he 
did not order the Sheriff to summons a special 
jury of certain qualifications, nor did he designate 
the jurors who should be summoned; but he or- 
dere'd the Sheriff to summons citizens from the 
country, and not to summons citizens of Jackson. 
The law, in its provision for a special jury, con- 
templates the selection of men with reference to 
their superior competency and fitness to try and 
determine the particular issues involved in the case, 
but he cannot direct the Sheriff, where all are 
equally competent, not to summons those whose 
residence is within the city limits, but to summons 
only those who reside beyond the city limits, no 
more than he can authorize him to summons those 
citizens only of German descent and not to sum- 
mons those of Irish descent, or to authorize him 
to summons negroes and not to summons white 
men. 3 Bax., 373. He might, if he so desired, 
have designated the names of those to be sum- 
moned, but this he did not do. This assignment 
of error is sustained. 

The second assignment of error relied on is the 
admission of proof as to the value of the prop- 
erty of the city, the value of the city hall, water- 
works, and the assessed value of all the property 
of the city ; also the amount of salary paid the 
Mayor. 



454 JACKSON : 



Jackson v. Pool. 



This would have been clearly erroneous, it not 
being a case where punitive damages could have 
been allowed, if objection had been made. The 
only objection interposed was a general objection 
to the question as to the amount of the Mayor's 
salary. Therefore, this assignment of error is over- 
ruled. 

The next error assigned is that, upon objection, 
the Court refused to permit the defendant to bring 
into Court, and exhibit to the Court and jury as 
evidence, that portion of the sidewalk, consisting of 
two planks and cross-bars, on which the plaintiff 
was hurt, to prove that they were not in the con- 
dition as some of the witnesses had sworn. As a 
matter of proof, ancillary to other testimony, parties 
are permitted to exhibit to the Court and jury 
persons, models, and things not cumbrous, when- 
ever the inspection of them may tend to the dis- 
covery of the truth of the matter in controversy. 
3 Greenleaf on Evidence, Sec. 328. Whether the 
articles proposed to be exhibited are too cumbrous 
or not is committed to the discretion of the Court, 
which will not be revised in this instance. 

It is next assigned as error that the Court, over 
the objection of defendant, permitted the plaintiff's 
attorney, in his closing argument, to use improper 
argument, in this: *'If one of you should come to 
town and violate one of the ordinances of the city 
government by any disorderly conduct, you would 
see how quick you would be arrested and carried 
before Mavor Gates and fined." This was used in 



APRIL TERM, 1892. 455 



Jackson z: Pool. 



reply to the argument of defendant's attorney, that 
"If you give a verdict against the defendant in 
such trivial cases as this one you will place a bur- 
den upon our struggling young city that it will not 
be able to bear. * * * It would bankrupt and 
ruin the city of Jackson to require it to keep all 
its streets and sidewalks in perfect repair." 

We will not say that the argument of plaintiff's 
attorney, under the circumstances, was improper. 
It is not every improper argument of counsel that 
will cause a reversal of the case, but only where 
we can see that such improper argument did prob- 
ably influence the jury. When the court was asked 
to stop the counsel in the supposed improper argu- 
ment, the Court refused to do so, saying "that the 
matter of fines was on^ source of revenue for the 
city." This remark of the Court was erroneous, 
for, as we have already stated, the matter of rev- 
enue was not involved — th^ jury had nothing to do 
with the revenue of the city in making up their 
verdict. 

The next assignment of error is that the Court 
allowed the attorney for the plaintiif, over the ob- 
jection of the defendant, to read decisions to the 
jury where large verdicts were given against towns 
and cities. The attorney of plaintiff', upon objec- 
tion being made, stated to the jury that these 
opinions were not read for the purpose of influenc- 
ing them in fixing the amount of damages, but to 
show the kind of obstructions for which a city 
would be held liable. It certainly was hardly nee- 



456 JACKSON : 



Jackson v. Pool. 



essary to read to the Court opinions to prove that 
the city might be rendered liable for defective 
sidewalks. Where decisions are read from the re- 
ports to influence the jury in fixing the amount 
of damages, or where the tendency of the same 
may be to influence the jury in fixing the dam- 
ages, the Court should interpose to prevent it, and 
a failure to do so, upon objection, is reversible 
error. But, in this case, as the attorney stated, 
they were not read for that purpose, and as it 
appears that at least one of the opinions did not 
state the amount of the damages, and as the Court 
told the jury they could not regard the decisions 
read in -fixing the amount of their verdict, we ex- 
press no opinion as to whether this, under the 
conditions .above named, be reversible error, as the 
case must be reversed on another ground. 

The next and last assignment we shall notice 
is, that there was error in the charge of the Court 
as follows: "If there was a defect in the street 
or sidewalk, and it was not reasonably safe for 
persons passing along it in the usual modes, while 
exercising reasonable care and caution, and such 
defect was a latent defect and not a patent defect; 
but, if the defect, though a latent one, was of 
such a character that the officers whose duty it 
was to keep the streets and sidewalks in repair, 
could, with reasonable and proper care, by inspec- 
tion, examination, or otherwise, have ascertained 
such defects by the exercise of reasonable and 
proper care, the defendants would be charged with 



APRIL TERM, 1891. 457 



Jackson v. Pool. 



notice of such defect," etc. The Court, before the 
extract quoted, had given a full and fair charge 
as to the liability of municipal corporations after 
actual or constructive notice of the defect and 
time to repair. Tlie complaint is, that the Court 
should then add that the corporation was liable 
for a latent defect which might have been discov- 
ered by "inspection, observation, or otherwise;" 
and tiiat this became material by reason of the 
testimony of at least one witness, who swore that 
the defect in the sidewalk was of a latent char- 
acter. A corporation may be liable for latent 
defects over dangerous structures or dangerous 
places, and the same should be inspected from 
time to time; but this cannot apply to a plank 
sidewalk on the ground. The corporation is not 
required to take up and examine from time to 
time all the plank walks in the city lying on the 
ground, when the same is apparently in good con- 
dition, and therefore it was confusing to the jury 
and erroneous to charge as to latent defects unless 
it had been confined to structures ove'r dangerous 
places or to dangerous places over which the side- 
walk was constructed. 

The case will be reversed and remanded, and 
the defendant in error will pay costs. 



458 JACKSOX : 



Loague v. Railroad. 



LoAGUE V. Railroad. 
{Jackson. May 3, 1892.) 

Revivor. 0/ wiJoiv^s suit for negligent kiliing of husband. 

Widow's suit for negligent killing of her husband cannot be revived 
and prosecuted in name of her personal representative where 'she dies 
during its pendency. 

Code construed : §§3130, 3>3<» 3«32, 3*34 (M. &V.); §$2291, 2292, 
2293 (T. &S.). 

Cases cited: Hall v. Railroad, Thomp. Cas., 204; Flatley v. Railroad, 
9 Heis., 230; Bledsoe v. Stokes, I Bax., 312; Trafford f. Express Co., 
8 Lea, 109; Greenlee v. Railroad, 5 Lea, 418; Railroad v. i^illy, 90 
Tenn., 565. 



FROM SHELBY. 



Appeal in error from Circuit Court of Shelby 
County. L.' H. Estes, J. 

T. W. & R. G. Brown for Loague. 

James M. Greer and Frank P. Poston for 
Railroad. 

LuRTON, J. Mattie Curry, as widow of John 
W. Curry, brought an action against the defendant 
railway company for the negligent killing of her 



APRIL TERM, 1892. 459 



Loague v. Railroad. 



husband. Pending this suit, she died, and John 
Loague, as her administrator, moved the Court to 
permit him to revive the suit in his name. This 
motion was resisted by the defendant, and over- 
ruled by the Court. 

At the common law, the right of action for 
personal injuries died with the person injured. 

By our Act of 1851-52, carried into the Code 
as §§3130, 3131 (M. & V.), the rule of the com- 
mon law was so far modified as to save the right 
of action of a person dying by the wrongful act 
of another, by providing that such right should 
not abate or be extinguished by death, and that 
the suit might be instituted by the personal rep- 
resentative of the deceased for the benefit of the 
widow or next' of kin, and by further providing 
tliat if he decline to bring such suit, the widow 
and children of the deceased might, without his 
consent, use his name in bringing such suit. 

Under that Act it was decided that, although 
the suit was for the personal benefit of the widow 
and next of kin, yet they could not sue in their 
own names, and that the suit would lie only in 
the name of the personal representative. Hall v. 
N, ^^ C. R, R. Co., Thompson's Cases, 204; Flatley 
V. M. ^ a R. -R., 9 Hois., 230; Bledsoe v, Stokes, 
1 Bax., 312. These cases rested upon the terms 
of the Act, saving a right otherwise extinguished. 
"It is a general principle," said Judge McFarland, 
in Flatley v. Railroad, "that where a right is 
given by statute, and a remedy provided in the 



460 JACKSON : 



Loague z: Railroad. 



same Act, the right can be pursued in no other 
mode." 

The law thus stood from 185T until the Act of 
1871, Ch. 78, found as § ai32 of the Code (M. & 
V-)' ^^y ^vhich this right of action might be pros- 
ecuted by the widow in her own name, and, if 
there was no widow, then by the children. The 
right of action under both Acts was the right of 
the deceased. The ground of action was the 
wrong to the deceased. The Acts only preserved 
the right and regulated the mode in which the 
suit might be prosecuted. 

After some fluctuation, it was finally settled that, 
 under these Acts, the only damages which could 
be recovered in any action under them were the 
damages which the deceased was entitled to re- 
cover if he had sued. Trafford v. Express Co,, 8 Lea, 
109. Subsequently, the Act of 1883, Ch. 186, was 
passed, compiled as § 3134 of the Code (M. & V.). 
By this Act it was provided that where the death 
was caused by the fault of another, "that the 
party suing shall, if entitled to damages, have the 
right to recover for the mental and {)hysical suf- 
fering, loss of time, and necessary expenses re- 
sulting to the deceased from the personal injuries, 
and also the damages resulting to the parties for 
whose use and benefit the right of action survives 
from the death consequent upon the injuries re- 
ceived." This Act in no way changes the mode 
of suing. The suit must still be prosecuted by 
the widow, or the children, if there is no widow, 



APRIL TERM, 1892. 461 



Loague v. Railroad. 



or by the personal representative of the deceased. 
It does not confer upon the widow any inde- 
pendent right to sue exclusively for the damages 
resulting to herself or the children. One action 
is given. In it all the damages, resulting either to 
the deceased or to those for whose benefit the ac- 
tion may be prosecuted, are to be recovered. The 
only effect of the Act is to enlarge the right of 
the person suing, so as to permit the recovery of 
the damages peculiar to the widow and children, 
together with the damages which the deceased 
might have recovered for his own benefit, and on 
account of his own suffering and loss. 

It would seem to follow, therefore, that these 
statutory damages^ can only be recovered in the 
mode prescribed by the statute. The widow may 
prosecute the suit; but if there be no widow, or 
she die pending the suit, in whose name may the 
suit be then prosecuted? The statute answers the 
first inquiry. " The widow alone has the right to 
sue in the first instance. The children have the 
right only where there is no widow." Greenlee v. 
Railroad^ 5 Lea, 418. The statute does not pro- 
vide that the suit of the widow may be prosecuted 
by her personal representative. The right to con- 
duct such a suit by the widow depends on the 
statute. She prosecutes as quasi trustee. The re- 
covery is to be distributed as the personal estate 
of the deceased, free from the claims of creditors. 
Her representative takes only her estate, and is re- 
sponsible on his bond only to her creditors and 



462 JACKSON : 



Loague ?'. Railroad. 



distributees. He may revive only suits brought in 
her right, and does not succeed to her actions as 
trustee. It is true she has a beneficial interest, 
but her right is a devisative and dependent one. 
It is a recovery which is to be distributed as the 
personal estate of the deceased. The right of ac- 
tion is still the right of the deceased, although the 
recovery may include as an element such damages 
as were sustained by the persons to whom tlie 
statute gives the recovery. The right of action 
being given only by the statute, must be prose- 
cuted according to its provisions. 

Judge Caldwell, in Railway v. Lilly^ 90 Tenn., 
565, in speaking of this statute, said : " No right 
of action will be inferred; no remedy will be given 
in favor of any persons, except those distinctly con- 
templated a« beneficiaries." 

We think the administrator of Mrs. Curry had 
no right to revive this suit, or prosecute it in his 
name. 

Affirm the judgment. 



Judge Snodgrass is of opinion that where the 
widow has brought suit, and dies while such suit 
is pending, that she had such beneficial interest in 
the action as to entitle her personal representative 
to revive and prosecute it. 



APRIL TERM, 1892. 463 



Irvine v. Palmer. 



Irvine y. Palmer. 
{Jackson. May 5, 1892.) 

Retainer. Of legatee's debt to the estate out of his legacy. 

An executor has the right, and it is his duty, to retain out of a legacy 
any amount due from the legatee to the testator's estate. The lega- 
tee's indebtedness to the estate constitutes an equitable lien upon the 
legacy, that cannot be defeated or supplanted by his creditors. 

Cases cited and distinguished : Towles v. Towles, i Head, 6oi ; Mann 
V. Mann, 12 Heis., 246; Steele v, Frierson, 85 Tenn., 436. 



FROM GIBSON. 



Appeal from Chancery Court of Gibson County. 
H. J. Livingston, Ch. 

Cooper & Harwood for Irvine. 

Neil & Deason, and R. P. Raines for Palmer. 

Lea, J. Complainant filed his bill in this 
case on January 3, 1887, against W. R. Palmer, 
Mrs. Jane James, and T. J. Warren, administrator 
of J. W. Hays. He charges that he had recovered, 
in 1883, a judgment for $1,631.73 and costs against 



464 JACKSOX': 



Irvine 7'. Palmer. 



Defendant Palmer, and that said judgment was 
still unsatisfied, and execution ' had been returned 
7udla bona; that in December, 1886, J. W. Hays 
died testate; that his will had been duly proven, 
and that on January 1, 1887, Defendant T. J. 
Warren qualified as administrator of said Hays, 
with the will annexed ; that by the terms of said 
will Defendant Palmer is made a legatee, and will 
perhaps receive enough money to pay the debt due 
complainant; that testator directs a sale of his 
real estate, and that the same be converted into 
money arid divided between certain of his relations, 
one of whom is Defendant Palmer. He prays for 
injunction, etc., and that such decrees be rendered 
as will subject Palmer's interest in J. W. Hays' 
estate to the payment of his debt and costs. 

Palmer answered, and, by written agreement, 
admitted his indebtedness to complainant, and 
agreeing that his interest in the estate was liable 
for its payment. 

Warren, administrator, answered, admitting that 
Palmer was a residuary legatee under the will of 
' J. W. Hays, but set up in his answer, as a de- 
fense to complainant's right of recovery, that at 
the time of the death of Ji W. Hays, Defendant 
Palmer was indebted to him by account, and that 
subsequently, upon a settlement wdth Defendant 
Warren, he had executed his note to him, as ad- 
ministrator, for $454.72, and insists that said debt 
is a prior charge upon the legacy of said Palmer 
to the claim of complainant, and, if there is a 



APRIL TERM, 1892. 465 



Irvine 7'. Palmer. 



residue of the estate, that he has a right " to re- 
tain the same or enough of the same to liquidate 
and pay off' said debt due the estate of J. W. 
Hays, and his right to do this is in no way af- 
fected by the attachment of complainant." There 
is no issue or controversy as to facts; the only 
issue is as to priority of payment. . Complainant 
insists that he is entitled to such priority under 
the facts stated, having fixed a lien thereon; and 
Defendant Warren insists he is first entitled to 
retain enough of said legacy to pay what the leg- 
atee owes the estate. 

Upon this issue the Chancellor decreed that 
Defendant Warren, administrator, has the right 
and should retain out of said legacy of Palmer, a 
sufficient amount to pay his note and interest be- 
fore complainant can receive any ^thing on his 
debt out of said legacy; that Defendant Warren, 
administrator, has priority over complainant. From 
this decree complainant has appealed. The decree 
of the Chancellor is correct. The right of re- 
tainer for a debt due the estate from a legatee is 
an equitable doctrine which has received the sup- 
•port and sanction of Courts of Equity from the 
earliest cases. The right to retain is grounded 
upon the principle that it would be inequitable 
that a legatee should be entitled to his legacy 
while he retains in his possession a part of the 
funds out of which his and other legacies are to 
be paid. He should not receive any thing out of 

such a fund without deducting therefrom the 
30—7 p 



466 JACKSON : 



Irvine v. Palmer. 



amount of that fund which he has in his. hands 
as a debt to the estate. An assignee of the leg- 
atee takes his legacy subject to the same equity 
which exists against it in his hands. This equi- 
table principle and doctrine is approved by all the 
leading text-writers. In 2 Redfield on Wills, p. 
581, it is stated : " There seems to be no question 
of the right and duty of the executor to set oft* 
any debt due the estate from a legatee against 
any legacy which he may be called on to pay. 
But this right of retainer does not extend to an 
indebtedness created after the decease of the tes- 
tator, by the legatee giving security to the estate 
for the indebtedness of other parties. It has been 
held that the executor's right to retain upon debts 
due the estate, as against legatees, is prior to any 
right of a mprtgagee of the legacy." 

In 1 Pomeroy's Eq. Jur., Sec. 541, it is stated: 
"In fact, such a legacy produces no eftect upon 
the indebtedness. The only effect such a leg- 
acy, given simpliciterj can have, is to create the 
right to an equitable set-off'. The legatee might 
not be forced, by means of a legal action, to pay 
the debt to the executors when he could, in turn, 
recover back from them the same amount or a 
part thereof, by virtue of his legacy. A Court of 
Equity, in order to prevent this circuity of action, 
may permit the executors to 8.et off the debt 
against the demand made on them for the legacy; 
and if the estate is solvent, so that the debtor will 
be entitled to receive payment of his legacy, the 



APRIL TERM, 1892, 467 



Irvine v. Palmer. 



Court may compel the executors to give liim credit 
for the amount of his legacy, when they are seek- 
ing to enforce the claims of the estate upon him 
for the debt." 

It is said in Williams on Executors: "Where a 
legatee is indebted to the testator, the executor 
may retain the legacy, either in part or full satis- 
faction of the debt, by way of set-off." 2 Will- 
iams on Ex., 1119. So, also, Adanis' Equity, side- 
page 223. 

But it is insisted" for complainant that a con- 
trary rule prevails in this state, and we are referred 
to the cases of Towles v. Towles, 1 Head, 601 ; 
Mann v. Mann, 12 Heis., 246; and Steele v. Frier- 
son, 1 Pickle, 436, as sustaining complainant's con- 
tention. The case of Towles v. Towles, 1 Head, 
was the sale by an heir of his interest in land, 
and the administrator afterward sought to collect 
out of the land a debt due from the heir to the 
estate. The Court said if the sale was bona fide 
it would hold against the debt of the eqtate. In 
Mann v. Mann, 12 Heis., it appeared that a son 
w^as indebted to his father's estate, and was in- 
solvent. His interest in his father's estate was at- 
tached, upon his father's death, by some of the 
creditors for their debts. The administrator sought 
to have the indebtedness from the son to the es- 
tate of the father given priority over the attach- 
ing creditors. The Court held : " The son's indebt- 
edness to his father's estate is not a lien on the 
son's share in the father's realty, which share is 



468 JACKSON : 



Irvine ?•. Palmer. 



therefore subject to a race of diligence between the 
personal representative of the father and the other 
creditors of the son." Steele v. Friersonj 1 Pickle, 
was where there was an assignment by a son, be- 
fore his father's death, of his interest in his fa- 
ther's estate, his interest being real and personal. 
But whether there was involved in the controversy 
before the Court any personalty, does not very 
clearly appear. The cases referred to in the opin- 
ion as sustaining the position assilmed, were cases 
involving realty alone. But be this as it may, 
the parties were content not to raise or present 
the question of retainer; nor was the same argued 
before or passed upon by the Court. The cases 
do not sustain the contention of the complainant. 
Neither of the cases was a contest between the 
legatee and an executor, but were cases of realty 
which, upon the father's death, descended directly 
to the heir, and a lien had to be fixed either by 
attachment or assignment. In this case, it is a 
legacy in the hands of the administrator cum tes- 
tamento annexo. 

The decree will be afiirmed with costs. 



APRIL TERM, 1892. 469 



Mills 7>. Terry Manufacturing Co. 



Mills v. Terry Manufacturing Co. 
(Jackson, May 5, 1892.) 

1. Mechanics' Lien. Furnisher has none ^ when. 

The- seller of materials to a contractor is not entitled to a furnisher's 
lien upon the property repaired or constructed therewith, where there 
is no special contract between the seller and the owner of the property 
or the contractor that such materials should be used in construction 
or repair of the particular property against which the furnisher's lien 
is asserted. 

Code construed: '^ 2739, 2740 (M. & V.); \\ 1981, 1981^1 (T. & S.). 

Acts construed : Acts 1889, Ch. 103. 

2. Same. Case in judgfnent, 

' M. & Co., merchants dealing in building supplies, sold to T., a con- 
tractor, a lot of window-blinds. Most of these blinds were used by 
T. in the construction of a house for F. M. & Co. had no contract 
with T., the contractor, or F., the owner, that said window-blinds 
were to be furnished for F.'s house, or for any particular building. 

Held: M. & Co. have no furnisher's lien upon F.'s house for the blinds 
used by T. in its construction. 



FROM SHELBY. 



Appeal in error from Circuit Court of Shelby 
County. L. H. Estbs, J. 

Edgington & Edging ION for Mills. 



470 JACKSON: 



Mills V. Terry Manufacturing Co. 



tS* J. Shepherd for Defendants. 

W. A. Henderson, Sp. J. This case involves the 
construction of the mechanics' lien law, to the 'end 
that it may be determined whether the plaintiffs 
have a lien upon the house and lot of the defend- 
ant, John . T. Frost, situate in the cit)^ of Mem- 
phis. The plaintiffs Avere adjudged to be not so 
entitled in the Circuit Court of Shelby County, and 
they have brought their case to this Court by ap- 
peal in error. 

It appears that the plaintiffs are w^holesale mer- 
chants, who, in Cincinnati, Ohio, carry on the 
general business of selling building supplies, such 
as doors, blinds, etc., to contractors in building and 
repairing houses; and that the Terry Manufacturing 
Company is a concern of Nashville, Tenn., the busi- 
ness of w'hich sometimes embraces such contracts; 
and that John T. Frost is a citizen of Memphis, 
and entered into a contract with his co-defendant to 
repair his dwelling-house, situate in said city, which 
was accordingly done. 

From the agreed statement of facts it apf)ear8 
that on the sixth day of August, 1891, the said 
plaintiff received from the Terry Manufacturing 
Compan}^ an order for a lot of inside window- 
blinds, which, on the third day of September fol- 
lowing, they filled, amounting to $212.50, of which 
blinds to the amount of $188.80 were afterwards 
proved to have gone into the Frost building in 
Memphis, upon which all statutory steps to preserve 



APRIL TERM, 1892. 471 



Mills V. Terry Manufacturing Co. 



the furnishers' lieiij if any existed, were taken. It 
further appears that no other relation existed be- 
tween the plaintiffs and the Terry Manufacturing 
Company than that of vendor and vendee, and that 
they had no knowledge as to what use the vendee 
intended to make of the goods.* 

It is provided by the first section of the Acts 
of 1889; Ch. 103, that "Section 2 of the Act of 
the Legislature of 1881, Ch. 67, above referred to 
in this caption, shall be amended so as to read as 
follows : ^ Every journeyman or other person em- 
ployed by such mechanic, founder, or machinist to 
work on the building, fixtures, machinery, or im- 
provements, or to furnish material for the same, 
shall have this lien for his work or material ; Pro- 
vided^ " etc. 

The present Act of 1889, Ch. 103, is only in- 
tended to apply to such mechanics, founders, and 
machinists as had a lien under Code (T. & S.), 
§§ 1981, 1981a, where the lien is created in the 
following words : " There shall be a lien on any 
lot of ground or tract of land upon which a 
house has been constructed, built, or repaired, or 
fixtures or machinery furnished or erected, or im- 
provements made by special contract with the 
owner or his agent, in favor of the mechanic 
or undertaker, foundei^ or machinist, who does the 
work or any part of the work, or furnishes the 
materials or any part, of the materials, or puts 
thereon any fixtures, machinery, or material, either 
of wood or metal.'' 



472 JACKSON : 



Mills V, Terry Manufacturing Co. 



The obvious construction of this Act, and of 
those of which it is amendatory, is that such lieu 
arises upon a special contract, as contemplated by 
the Acts. Such a lien does not follow a window- 
blind, like a shadow, as it passes from vendor to 
vendee, with no contract for its use in a particu- 
lar building. A most liberal construction of the 
Act would not extend it to embrace the case pre- 
sented by tlie plaintitfs. 

The judgment of the Circuit Court, having been 
in accord with this construction, is in all things 
affirmed, with costs. 



APRIL TERM, 1892. 473 



VanVleet v. Stratton. 



VanVlbet y. Stratton. 
{Jackson. May 5, 1892.) 

1. Garnishment. Of debtor' savages ineffectual ^ when. 

Garnishment of an employer for the purpose of subjecting an employe's 
wages to his debts is wholly ineffectual where the wages were earned 
and paid over to the employe, between the dates of service of the 
garnishment notice and the rendition of the garnishee's answer, pur- 
suant to a contract, made in good faith, whereby the employer agreed 
to and did pay his employe's wages in advance. Such wages are not 
*' property, debts, and effects " of the employe within the meaning 
of t^e garnishment laws. 

Code construed: §{^3800, 3801, 3803 (M. & V.) ; §§3087, 3088, 3090 (T. 

&S.). 

Cases cited and approved : Mayor, etc., v. Potomac Ins. Co., 2 Bax., 
296; Pickler 7a Rainey, 4 Heis., 339; 117 Mass., 238; 38 Conn., 290; 
51 Mich., 115. 

2. Same. Same. Good faith of contract. 

And such contract between employer and employe is not fraudulent or 
illegal, although it was well understood by the parties making it that 
the stipulation for payment of wages in advance was intended to pro- 
tect them against garnishment, and thereby enable the employe to 
support his family and pursue his Vocation. The obligation to sup- 
port one's family is of a higher order than the obligation to pay one's 
debts. 

Cases cited and approved : Leslie v. Joiner, 2 Head, 515; Hamilton v, 
Zimmerman, 5 Sneed, 39. 



FROM SHELBY. 



Appeal iu error from Circuit Court of Shelby 
County. L. H. Estes, J. 



474 JACKSON 



VanVleet T'. Stratton. 



Thomas H. Jackson for VanVleet. 

M. R. Patterson and Gantt & Patterson for 
Stratton. 

W. A. Henderson, Sp. J. On May 9, 1891, the 
defendants in error recovered a judgment against 
one Sheats for §75.25 before a Justice of the Peace 
for Shelby County. On this judgment an execution 
was sued out May 27, 1891, and, no property having 
been found, garnishment was, on that day, served 
upon the plaintiffs in error, commanding them to 
appear and answer on June 25, 1891, on which 
day tlie garnishees appeared, and filed answer that • 
the said Sheats was indebted to them in the sum 
of J124.50 ; that he was their employe, on a monthly 
salary of $100 per month, and that no money had 
been paid him since the service of the writ of 
garnishment. On this answer the garnishees were 
discharged, but immediately an alias execution was 
issued, and another garnishment was served upon 
the plaintiffs in error, notifying them * to answer 
on July 25, 1891, on which day they filed, an- 
swer, setting forth that, since June 25, 1891, the 
del)tor had earned in their employment, and had 
been duly credited with, the sum of $100, and that 
they liad loaned him $100 since that date, and that 
he was, on that date, indebted to them in the sum 
of $104.50. On this answer the garnishees were 
again discharged. Immediately a pluries execution 
was issued, and another garnishment served, notify- 



APRIL TERM, 1892. 475 



VanVleet ?'. Stratton. 



ing plaintiffs in error to appear and answer on 
August 25, 1891, when they appeared and filed 
substantially the same answer, upon which the Jus- 
tice rendered jud^^ment against the garnishees, who 
appealed the case to the Circuit Court. 

On the trial in the Circuit Court, the plaintiffs 
in error appeared, and, upon oral examination, sub- 
stantially stated that what was meant by the state- 
ment that $100 had been "loaned" the debtor, 
and the truth of the matter was, that, upon the 
service of the first garnishment, the debtor, who 
was one of their employes, came to them, and, in 
substance, stated that he had a family to support, 
and if his monthly salary was to be tied up or 
absorbed in this way he would be compelled to 
abandon their employment and seek a livelihood in 
some other way elsewhere ; that they desired his 
services, and, in order to retain them, agreed to 
pay his monthly wages in advance, which had been 
accordingly done. 

Upon this answer, Ilis Honor, the Circuit Judge, 
rendered judgment against the garnishees. This 
was erroneous. To authorize such a judgment, it 
must clearly and obviously appear that the gar- 
nishees were indebted to the debtor, or that a 
debt had existed, which had been seized and im- 
pounded by the garnishment. Obviously, the gar- 
nishees were not then indebted, nor, so far as 
this record shows, had they ever been. 2 Bax., 
296; 4 lleis., 339. 

The judgment is defended before us on a charge 



476 JACKSON: 



VanVleet v. Si rat ton. 



of fraud against the parties. It is ingeniously and 
ably argued that the debtor was under obligation 
to pay this debt, and that, in order to hinder and 
delay the collection of it, a covinous arrangement 
was entered into by which the garnishees agreed 
with the debtor to pay him in advance for his 
labor, instead as had theretofore been done. 

We are not persuaded that this was fraud. It 
is true the debtor was under obligation to pay 
the debt, but he was under higher legal and moral 
obligation to support his family. 2 Head, 515 ; 5 
Sneed, 39. To comply with this obligation, there 
is nothing illegal nor immoral in demanding pay 
for one's services in advance. 

As to the plaintiifs in error, they were under 
no obligation whatever to the defendants in error. 
What right has a creditor to say to an employer, 
" You must not pay your employe in advance, 
but allow his wages to accumulate, so that a fund 
may arise in your hands from which I may real- 
ize my debt ? " 

One question remains. Of course, if, at the 
time of the service of the garnishment, a debt 
was in esse, due or undue (questions as to nego- 
tiable and assignable paper being out of the way), 
the same may be seized and impounded ; but if 
nothing whatever is due, nor any debt exists not 
yet due, may you summon an employer before a 
Justice month by month, or before a Court term by 
term, and thus prevent any payment of wages to 
him, as was attempted in this case? Can this writ 



^ APRIL TERM, 1892. 477 



VanVleet ?'. Stratton. 



place the defendants in error on higher grounds 
than the debtor with reference to his employer? 
Drake on Attach., 458. 

The execution of a writ at law cannot seize a 
thing that has no existence. An after-born thing-r- 
for instance, a debt — cannot be born into a levy 
that had previously been made, unless it be con- 
trolled by a statute, clear and unambiguous in its 
terras. This principle is conceded in this case, but 
it is insisted that our statutes go to that extent. 
Mr. Drake commends such laws for the conven- 
ience of collecting debts, and quotes Alabama and 
Missouri as having passed such Acts. 

We do not so construe our statutes. In Code, 
§§ 3800, 3801, great latitude is very properly given 
to the creditor as to what questions he may ask 
the garnishee, like a bill of discovery, which may 
help him in his search for assets. Yet, in the 
subsequent section, where it speaks, among other 
things, of "debts" as being held liable under the 
writ, it does not mean an intangible expectancy, 
depending on the will of the debtor, but a chose 
in action in existence at the moment of the levy. 
Drake on Attach., 559; 117 Mass., 238; 38 Conn., 
290; Free, on Ex., Vol. I., Sec. 164; 51 Mich., 
115. 

This construction of the statute and of the an- 
swers of the garnishees compels a reversal of the 
judgment below. 

Judgment will be rendered here for the gar- 
nishees, with costs. 



478 JACKSON : 



Pearcy z'. Tate. 



Pearcy V. Tate. 
{Jackson. May 7, 1892.) 

1. Redemption of Lands. By administrator of lien-holder^ 

The holder of a purchase-price lien upon land, or his administrator, has 
the right to redeem the land from a sale m^de subject to redemption 
under his prior mortgage or trust deed. 

2. Same. Same, Case in jtidgmetU. 

P. conveyed his lands in trust to M. to secure a debt. He then sold 
and conveyed the same lands in fee, but subject to said trust deed, to 
his son, J., taking notes and retaining lien for the purchase-price. 
Afterwards the lands were sold under the trust deed, subject to the 
right of redemption. P. having died, his administrator, holding the 
purchase-price notes, redeemed the land from the purchaser at the 
trustee's sale. 

Held: P.'s administrator had the right to redeem the land as holder of 
the purchase-price notes secured by lien thereon. 



FROM DECATUR. 



Appeal from Chancery Court of Decatur County. 
A. J. Abbrnathy, Ch. 

Bullock & Anderson and Caruthbrs & Mallory 
for Pearcy. 

T. P. Bateman and J. A. England for Tate. 



APRIL TERM, 1892, 479 

Pearcy v, Tate. 

Caldwell, J. This is a bill to rescind and 
vacate a redemption of land, and to assert and 
protect the title of complainant, from whom the 
redemption was made by defendant. 

On March 3, 1886, John H. Pearcy, the original 
owner, executed a deed of trust, by which he con- 
veyed the land in question to John McMillan, as 
trustee, to secure the payment of certain debts 
therein named. The trustee was authorized to 
make sale if the secured debts should not be paid 
by the first da^r of July, 1887. 

On December 15, 1886, John H. Pearcy con- 
veyed the same land, in fee, to his son, John W. 
Pearcy, for and in consideration of two thousand 
dollars, as security for which a lien was expressly 
retained in the face of the deed. 

The latter conveyance referred to the former 
one in this language : "And this deed is subject 
to a deed of trust in the hands of John McMillan, 
Sr., and to be foreclosed by him, for the bene- 
fit of my creditors, the first of July, 1887. 
The amount to be paid is $396. The deed 
of trust was dated March 3, 1886, and is regis- 
tered," etc. 

Only a small part of the consideration was paid 
at the time, four promissory notes being executed 
for deferred payments. The last three notes called 
for $500 each, maturing, respectively, on December 
25, 1888, 1889, and 1890. The first one was for a 
smaller sum, and contained significant words and 
figures, as follows: 



480 JACKSON : 



Pearcy t. Tate. 



"$396.00. On or by tlie first of July, 1887, I 
promise to pay John IL Pearcy the sum of 
$396.00, to satisfy a deed of trust, John McMillan 
being the trustee in said deed." 

John H. Pearcy, the vendor, died intestate in 
May, 1887. J. II. Tate was qualified as adminis- 
trator of his estate in July, 1887, and, in Novem- 
ber, 1887, filed a bill against John W. Pearcy, the 
vendee, to collect said first note, then past due, 
and the others as they should mature, and to en- 
force the lien against the land. TJ^at suit is still 
pending; but it need not be further noticed at 
present. 

The debts secured in the deed of trust not 
having been paid, McMillan, the trustee, on Sep- 
tember 3, 1887, sold the land to J. T. Pearcy, 
a son of John W. Pearcy, for $405, the amount 
of the secured debts, with interest, and executed 
to him a deed. 

The sale was subject to redemption, that right 

not having been waived by the maker of the deed 

of trust. 

On October 2, 1888, long before the expiration 

* 
of the two years allowed for redemption, Tate, the 

administrator of John II. Pearcy, deceased, re- 
deemed the land, without suit, from J. T. Pearcy, 
paying him the full amount of his bid, with in- 
terest, and taking a receipt, reciting the fact of 
redemption. 

More than a year thereafter, and when it was 
too late for any one else to redeem the land, J. 



APRIL TERM, 1892. 481 



Pearcy v. Tate. 



T. Pearcy, on December 31, 1889, filed this bill, 
seeking a rescission and vacation of the redemption, 
on the alleged ground that the administrator of 
John H. Pearcy had no right to redeem, but had 
fraudulently misled complainant in that regard; 
and seeking, further, to have complainant's title, 
under his purchase from the trustee, declared per- 
fect, and to perpetually enjoin the prosecution of 
the suit against his father for the collection of the 
purchase-money notes belonging to the estate of 
the original vendor, John H. Pearcy. 

The administrator answered the bill, denying all 
charges of imposition, and insisting that his re- 
demption of the land was rightful and valid. 

Hearing the cause upon these pleadings and the 
proof, the Chancellor granted the relief sought in 
the bill; and from his decree the defendant ap- 
pealed. 

The decree is erroneous, manifestly. John H. 
Pearcy did not part with the whole of his inter- 
est in the land by his conveyance of the fee to 
John W. Pearcy. He retained an express lien in 
the face of the deed as security for the payment 
of the Y)urchase-money. Having retained such a 
lien, and it still subsisting at the time of the 
trustee's sale, John H. Pearcy, the vendor, had 
such an interest in the land that he would have 
been entitled to redeem it himself had he lived. 
Having died, and the lien continuing as a secu- 
rity for the purchase-money notes, his adminis- 
trator, into whose hands those notes came for ad- 

31-7 p 



482 JACKSON : 



Pearcy v. Tale. 



ministration, became entitled to the same right of 
redemption for the benefit of the estate. 

The redemption so accomplished simply relieved 
the land of the incumbrance of the deed of trust, 
and preserved the lien in favor of the estate of 
John H. Pearcy, without vesting any personal 
right in his administrator. 

Confessedly, John H. Pearcy, in his life-time, 
or his administrator after his death, had a legal 
right to redeem the land from the trustee before 
foreclosure, by paying the secured debts and there- 
by extinguishing the deed of trust; and, upon all 
just and fair reasoning, the right of either to re- 
deem after foreclosure must have been the same 
as it was before foreclosure — nothing more, nothing 
less — the right of redemption after sale not having 
been waived. 

So far as this question is concerned, there is 
no distinction between a deed of trust and a mort- 
gage as a security for debt, the right of redemp- 
tion existing whether the conveyance of the debtor's 
land be in the one form or the other. His in- 
terests are the same, and demand the same pro- 
tection in the one case as in the other. 

Speaking generally, any person interested in the 
land conveyed by mortgage or deed of trust, and 
whose interest would be prejudiced by a foreclosure, 
may redeem from the mortgagee or trustee, so as 
to disengage the property and make it available 
for his own use, or for the protection of that 
interest; and any person with the same measure 



APRIL TERM, 1892. 483 

Pearcy v. Tate. 

of interest in the property may, to the same end, 
redeem it after foreclosure, if the right of redemp- 
tion be not waived, and the application be made 
within two years after sale. As, in the case at 
bar, John H. Pearcy, the maker of the deed of 
trust, and subsequent vendor of the land, or his per- 
sonal representative, for the benefit of his estate, 
had a right to redeem before or after foreclosure, 
to protect his lien on the land, and John W. 
Pearcy, his vendee, had the right to redeem be- 
fore or after foreclosure, to protect his legal title. 
With reference to the right of redemption of 
mortgaged property, and as to the persons who 
may redeem from the mortgagee, Mr. Story says: 
"From what has been already stated, it is clear 
that the equity of redemption is not only a sub- 
sisting estate and interest in the land in the hands 
of the heirs, devisees, assignees, and ^xpresentatives 
(strictly so called) of the mortgageor, but it is also 
in the hands of any other persons who have ac- 
quired . any interest in the lands mortgaged by 
operation of law, or otherwise, in privity of title. 
Such persons have a clear right, to disengage the 
property from all incumbrances, in order to make 
their own claim beneficial and available. Hence, 
a tenant for life, a tenant by the curtesy, a 
jointress, a tenant in dower in some cases, a re- 
versioner, a remainder-man, a judgment creditor, a 
tenant by elegit, the lord of a manor holding by 
escheat, and, indeed, every other person being an 
incumbrancer, or having legal or .equitable title or 



484 JACKSON : 



Pearcy v. Tale. 



lien therein, may insist upon a redemption of the 
mortgage, in order to the due enforcement of their 
claims and interests respectively in the land.'' 2 
Story's Eq. Jur., Sec. 1023. 

On th^ same subject, Mr. Pomeroy says: "Any 
person who holds a legal estate in the mortgaged 
premises or in any part thereof, derived through, 
under, or in privity with the mortgageor, and any 
person holding either a legal or equitable lien on 
the premises or any part thereof, under or in priv- 
ity with the mortgageor's estate, may also in like 
manner red^eem from the prior mortgage." 3 Pome- 
roy's Eq. Jur., Sec. 1220. 

The cases relied on by complainant's counsel 
are not in point, as aerainst the right of the ad- 
ministrator in this case to redeem. 

It is true, as contended, that a sale by a judg- 
ment debtor of his lands which had been sold at 
execution sale, within the two years allowed for re- 
demption, without previously having redeemed him- 
self, is, in effect, merely a sale of his equity of 
redemption, although his conveyance purports to 
be a sale of his entire title {McClean v. Hardison^ 
14 Lea, 510) ; and that the conveyance of land in 
fee, ivithout reservation of any right or interest, by 
a debtor who had previously conveyed the same 
land in trust for the benefit of creditors, passes 
his entire interest in the land, and includes the 
right of redemption, though not especially men- 
tioned. Graves v. McFarlane, 2 Cold., 167. But 
it does not follow, and cannot be true, that a 



APRIL TERM, 1892. 485 

Pearcy v. Tale, 

mortgageor who, during the life of his mortgage, 
conveys the mortgaged premises in fee, xoiih an 
express reservation of a lien to secure unpaid pur- 
chase-money, thereby divests himself of all interest 
in the. land, and cuts himself off from the fight 
of redeeming from the mortgagee. 

The existence of the lien carries with it the 
right of redemption. 

The injustice of a different ruling would find a 
striking illustration in the facts of this case. 

Reverse and dismiss the bill, with costs. 



486 JACKSON : 



Gurlcy v. Railroad. 



GuRLEY r. Railroad. 
{Jackson. May 10, 1892.) 

1. Appeal. Does not lie^ ivhen. 

In suit for personal injuries the defendant pleaded (i) not guilty; (2) 
gross contributory negligence of the plaintiff; (3) accord and satis- 
faction. The plaintiff joined issue upon the first two pleas, and filed 
replication to the third plea. Defendant's demurrer to this replica- 
tion was sustained. From this action of the Court, without any 
judgment disposing of the suit, the plaintiff appealed. 

Held: The appeal is premature. The judgment was not final. It did 
not dispose of the. entire case. It was not such judgment as the 
Court may grant appeal from before final judgment in the exercise of 
its discretion. 

Code construed: §§3872-3874, 3893 (M. & V.); §?3>55-3i57, 3i74 (T. 

&S.). 

Case cited and approved: Younger v. Younger, 90 Tenn., 25. 

2. Jurisdiction. Not conferred hy consent. 

. And jurisdiction cannot be conferred upon this Court in such case by 
consent of parties. 

Case cited and approved: Gibson 7'. Widener, 85 Tenn., 16. 



FROM SHELBY. 



Appeal in error from Circuit Court of Shelby 
County. L. H. Estes, J. 



APRIL TERM, 1892. 487 



Gurley r*. Railroad. 



W. p. Wilson for Gurley. 
Holmes Cummins for Railroad. 

Caldwell, J. Gus Gurley sued the Newport 
News and Mississippi Valley Railroad Company for 
ten thousand dollars, as damages for personal in- 
juries alleged to have been inflicted upon him by 
the defendant, while he was in its service in the 
capacity of conducter of one of its railway trains. 

To the declaration, defendant filed three pleas : 
(1) Not guilty; (2) gross carelessness and miscon- 
duct on the part of plaintiff, whereby he brought 
his misfortune upon himself; (3) accord and satis- 
faction. 

Plaintiff joined issue upon the first and second 
pleas, and filed a replication to the third plea. 
Defendant demurred to the replication. The 
Court sustained the demurrer, and from that action, 
without more, plaintiff appealed in error. 

The attempted appeal was premature, and, there- 
fore, conferred no jurisdiction upon this Court. 

Appeals as a matter of right, and appeals in 
the nature of a writ of error, lie from final de- 
crees and judgments only; and final decrees and 
judgments are only such as decide and dispose of 
the whole merits of the case. Code (M. & V.), 
§§8872, 3873, and 3.893; Younger v. Younger, 90 
Tenn., 25. 

The judgment sustaining the demurrer to the 
replication was not filial; it did not decide and 



488 JACKSON : 



Gurley v. Railroad. 



dispose of the merits of the whole case. On tlie 
contrary, it adjudged simply that the replication 
was not good in law, and left all other questions 
undisposed of and undecided. 

The plaintiff had a right to plead further, but 
he did not offer to do so. He might have de- 
nied the truth of the third plea, and in that way 
made an issue for the jury; or, upon his failure 
to plead over, the Court might have rendered 
final judgment, and dismissed the suit. Nothing 
of this kind was done or attempted to be done. 
There was no order to plead further — no request 
for that privilege; there was no declination to 
plead over, no judgment on the plea and dis- 
missal of suit. 

The Court only adjudged the demurrer good 
and the replication bad. From that action, and 
at that stage of the case, the plaintiff attempted 
to appeal in error. 

It is not, and could not reasonably be, claimed 
that this is a discretionary appeal under § 3874 of 
the Code. 

The defendant also desires the judgment of this 
Court upon its demurrer, and offers to waive all 
objections as to the nature of the judgment be- 
low and time of the appeal. That does not help 
the matter. Jurisdiction cannot be conferred by 
consent. Gibson v. Wideiiery 85 Tenn., 16. 

Let the appeal be dismissed for prematurity. 



APEIL TERM, 1892. 489 



Railroads v, Crider et a I. 



Railroad v. Crider; Same ik Barbour. Same 
V. Turner. Same y. Claybrook. 

{Jackson. May 10, 1892.) 



1. Railroads. Statute making unfenced absolutely liable for injuries to live- 

stock by inorving traifts constitutional. 

Acts 1891', Ch. loi, Hxing upon unfenced railroads absolute liability for 
injuries done to live-siock by their moving trains, is constitutional 
and valid, both as a whole and in its details, when its scope and pur- 
pose are ascertained by a correct construction. This Act should not 
be treated as a mere scheme for the speedy collection of damages for 
injuries to live-stock, although that is incidentally provided for. Its 
chief purpose is to prevent accidents on railroads, and, viewed from 
this higher ground, it is a proper and legitimate exercise of the police 
power of the Slate. {Post, p, 4g2 et seq.) 

Act construed: Acts 1891, Ch. loi. 

Cases cited and approved: 26 Mo., 441 ; 65 Me., 333 ; 27 Vt., 140; 115 
U. S., 522; 20 Wis., 267; 109 111., 402; 66 Pa. St., 164; 71 Mo., 
434; 50 Iowa, 338. 

2. Same. Same. Title of Act valid. 

And the title of said Act, though containing unnecessary details and 
particulars, is single, and embraces but one subject. That title is as 
follows: "An Act to require the section-masters of railroads to give 
notice of the killing or injury of live-stock by the trains or locomo- 
tives of railroads in Tennessee; to provide for the appointment of 
appraisers to ascertain and fix the value of such stock, or the amount 
of injury thereto, and to provide for the collection of such appraise- 
ments; to make railroad companies liable for all damages by reason of the 
killing or injury of live-stock upon or near their unfenced tracks by their 
moving trains y carsy or engines, ^^ The subject of this Act is fully ex- 
pressed in the last clause in italics. The preceding clauses of the 
title were unnecessary, but embracing only particulars germane to, 



I 91 48? 

116 513 



490 JACKSON : 



Railroads ?'. Crider et al. 



and included in, the general subject expressed in the last clause, they 
do not vitiate the title or the Act. {Posty pp, 4gjy 4^4.) 

Constitution construed; Art. II., Sec. 17. 

Act construed : Acts 1891, Ch. loi. 

Cases cited and approved : Luehrman v. Taxing District, 2 Lea, 425 ; 
Griffin, ex parte ^ 88 Tenn., 547. 

3. Same. Same. Not vicious class legislation. 

And said Act is not unconstitutional as vicious ** class legislation," 
although its provisions confer benefits upon a limited class, to wit, 
owners of live-stock, and impose burdens upon a limited class, to wit, 
unfenced railroads. These classes are natural and not arbitrary. 
(Post,pp.4g4-4g7.) 

(See The Morris Claimants "/. The Stratton Claimants, 89 Tenn., 500.) 

4. Same. Same, Proz'ision for appraisement of damages by freeholders valid* 

And that provision of said Act is valid which authorizes the appraise- 
ment of the damages done to live-stock by three freeholders appointed 
by a Justice of the Peace at the instance of the owner, and makes 
their r^Y^OTi prima Jade evidence of the value of the stock injured or 
killed. This is a mere regulation as to evidence, which it was com- 
petent for the Legislature to make. (Post, pp. 4g'jf-4gg.) 

Constitution construed: Art. I., Sec. 8; Art. XL, Sec. 8. 

5. Same. Same. Prcroision making railroad liable for plaintiff"* s attorney* 

fee, valid. 

And that provision of said Act is valid which makes railroads wrong- 
fully refusing to pay such appraisement liable for plaintiff's attorney 
fee, in addition to other damages, in any suit brought to recover the 
damages withheld. This is not obnoxious class legislation. It is an 
exercise of the police power of the State. But no fee is recoverable 
unless the appraisement is sustained. (Post^ pp. 4gg-30^.) 

Cases cited and approved: 115 U. S., 523; 109 111., 537; 16 Kansas, 
573; 20 Kansas, 660; 13 Am. and Eng. R. R. Cas., 650. 

Cases cited and distinguished: 31 Am. and Eng. R. R. Cas., 555; 35 
/</., 162. 



6. Same. Sanu. Same. Fee must be fixed by jury. 

But the amount of such attorney fee must, like other damages, be fixed 
by the jury or the Court sitting as a jury. The provision of said Act 



APRIL TERM, 1892. 491 



Railroads v. Crider et al. 



requiring the fee to **be fixed by the Court trying the case" is con- 
strued as providing for jury trial of this question, thereby saving the 
Act from unconstitutionality. {^Post^ pp, joj, So6.) 



7. Constitutional L\w. Doubtful construction of statute to be resolved in 

favor of its constitutionality. 

Doctrine re-affirmed and illustrated that where a statute is of doubtful 
meaning, it should receive that construction which is in harmony 
with the Constitution. (Post^ p. ^06.) 

Cases cited and approved: Hume v. Railroad, i Cold., 74; Cole Manu- 
facturing Company v. Falls, 90 Tenn., 466. 

8. Same. Repeal of statute by implication. 

Doctrine re-affirmed and illustrated that the constitutional provision re- 
quiring laws repealing or amending former laws to recite in the cap- 
tion or otherwise the law repealed or amended, does not apply to 
repeals or amendments which result from necessary implication. 
(Post, pp. S06, joy.) 

Constitution construed: Art. II., Sec. 17. 

Cases cited and approved: Insurance Company v. Taxing District, 4 
Lea, 644; Ballentine v. Mayor, eic, 15 Lea, 633. 



CRIDER CASE. 

Appeal in error from Circuit Court of Weakley 
County. W. H. Swiggart, J. 

Francis Fentress and Joseph E. Jones for Rail- 
road. 

Charles M. Ewing for Crider. 



BARBOUR CASE. 



Appeal in error from Circuit Court of Lauder- 
dale County. T. J. Flippin, J. 



492 JACKSON: 



Railroads v. Crider et aL 



IJoLMBS Cummins and Thomas Steele for Rail 
road. 



W. E. Lynn for Barbour. 



TURNER CASE. 

Appeal in error from Circuit Court of Tipton 
County. T. J. Flippin, J. 

Holmes Cummins, Sanford & Young, and John 
G. Miller for Railroad. 

Baptist & Boales for Turner. 

claybrook case. 

Appeal in error from Circuit Court of Lauder- 
dale County. T. J. Flippin, J. 

Holmes Cummins and Thomas Steele for Rail- 
road. 

John P. Gause for Claybrook. 

LuRTON, J. These four cases have been heard 
together. They present but one question — the con- 
stitutionality of the Act of 1891, Ch. 101, making 
unfenced railroads liable for all damages to owners 
of live-stock killed or injured by moving trains of 
cars or engines. 



APRIL TERM, 1892. 493 



Railroads v. Crider ft al» 



The first objection which has been urged is that 
the act embraces more than one subject. 

The title is as follows : 

"An Act to require the section-masters of rail- 
roads to give hotice of the killing or injury of 
live-stock by the trains or locomotives of railroads 
in Tennessee; to provide for the appointment of 
appraisers to ascertain and fix the value of such 
stock, or the amount of injury thereto, and to 
provide for the collection of such appraisements; 
to make railroad companies liable for aJl damages by 
reason of the killing or injury of live-stock upon or 
near their unfenced tracks by their moving • trains^ 
cars^ or engines.'' 

The subject of this act is the liability of un- 
fenced railroads for all damages resulting to live- 
stock killed or injured by moving engines or cars. 
This subject is clearly indicated by the last clause 
in the title, which we have indicated by italics. 
The preceding clauses of the title were unneces- 
sary. They are but statements as to the subdivis- 
ions of the act, and point out the measure of the 
damages, and the manner in which these damages 
are to be ascertained and enforced. 

When the object of an act is to subject railroad 
companies operating unfenced tracks to absolute lia- 
bility for all damages resulting from their unfenced 
condition, we can see no reasonable objection to 
embodying in the same act the means by which 
this liability may be ascertained and enforced, as 
well as provision for the increase of such dam- 



49+ J ACKSON : 



Railroads v. Crider e( a/. 



ages under conditions named in the Act. If the 
means are in themselves valid, their inclusion in 
the Act will not subject it to the inhibitions of the 
Constitution concerning bills containing more than 
one subject. So, if these subdivisions relating to 
details be germane, and related to the subject of 
the Act, their inclusion in the title, while unnec- 
essary, will not operate to make it an Act having 
more than one subject. The well-settled rule is, 
that this provision of the Constitution should be 
construed fiberally, otherwise it would operate to 
embarrass legislation without advancing the benefi- 
cial purpose intended, which was to prevent com- 
binations of incongruous subjects in one bill, with 
the object of drawing to the support of the whole 
bill members who might wish to support but a 
part. Only the general object of an act need be 
stated in the title, but under such title all the 
details by which that object is to be attained may 
be included. Luehrman v. Taxing District^ 2 Lea, 
4-^5; Ex parte Griffin, 88 Tenn., 547. 

Second. — It is next objected that the Act is 
void as being class legislation, and obnoxious to 
Art. XI., Sec. 8, of the Constitution, which pro- 
hibits the passage of " any law for the benefit of 
individuals inconsistent w^ith the general laws of 
the land," etc. ; and as prohibited by Sec. 8 of 
Art. I. as jDLot being "due process of law," or 
"the law of the land." 

Under this head it is urged: (1) That it is 
applicable only to a limited class of persons — un- 



APRIL TERM, 1892. 495 

Railroads v. Cr\(\tr et ol. 

fenced railroads; (2) that it operates in favor of 
owners of live-stock only; (3) that it provides 
for an ex 'parte appraisement of values by a tri- 
bunal unknown to the law, which is to sit in 
secret and judge without a hearing; (4) that it 
makes the oiSending corporation liable for the fee 
of adversary counsel if it shall unsuccessfully con- 
test its liability for the appraised value. 

Many of these objections are predicated upon 
the assumption that the statute is a mere piece of 
machinery for the more speedy collection of live- 
stock claims against railroads. If this view of the 
Act be the true one, then it does present many 
very serious questions of constitutional law. 

In our judgment the Act has a wider purpose 
and rests upon much higher and broader consider- 
ations. 

The end sought by this legislation is the pre- 
vention of accidents on railways, by compelling the 
inclosure of the track in such manner as will 
prevent live-stock from going on the roads. Fail- 
ure to fence is made* conclusive evidence of negli- 
gence whenever live-stock is killed or injured upon 
such an unfenced road by moving engines or cars. 
The liability of the company for actual damages 
is made the consequence of the failure to fence; 
and if the offending company refuse to pay the 
prima facie value of such stock, as ascertained in 
the mode prescribed by the Act, then it is made 
liable for an increase in the damages to the ex- 
tent of reasonable attorney's fees in the event it 



496 JACKSON : 



Railroads r. Cricler ct al. 



shall unsuccessfully litigate its liability for such 
jprima facie value. 

The duty o\\ fencing, and the resulting liability 
for failure to perform such duty, is imposed, not 
so much in the interest of the owners of animals 
which may go upon an unfenced road, as in the 
interest of the general public, who are concerned 
that accidents shall be avoided, and public travel 
be made as safe as the exiorences of that manner 
of transportation will permit. 

The authority for requiring railroads to fence 
in their tracks is found in the general police power 
of the State. The duty may be imposed by an 
affirmative statute, and enforced by fines, forfeit- 
ures, and penalties; or it may be indirectly im- 
posed, as in the Act under consideration, by sub- 
jecting unfenced roads to liabilities and penalties 
from which roads recognizing the duty are exon- 
erated. The enormous power and great momentum 
of railway engines render such protection a rea- 
sonable requirement against the unnecessary de- 
struction of private property and accidents to per- 
sons traveling by such conveyance. 

" This police power of the State," says an em- 
inent Judge, " extends to the protection of the 
lives, limbs, health, comfort, and quiet of all per- 
sons, and the protection of all property within the 
State. According to the maxim, sic utere tuo ut 
aliemim non laedas, which being of universal ap- 
plication, it must, of course, be within the range 
of legislative action to define the mode and man- 



APRIL TEEM, 1892. 497 

f ■■■»■■--- .—■■■■^  ■....I -- ■-■■■  —   

Railroads v. Crider ci al, 

ner in which every one may so use his own as 
not to injure others. By this general police 
power of the State, persons and property are sub- 
jected to all kinds of restraints and burdens in 
order to secure the general comfort, health, and 
prosperity of the State ; of the perfect right in 
the Legislature to do which, no question ever was, 
or, upon acknowledged general principles, ever can 
be, made, so far as natural persons are concerned." 
Redfield, Ch. J., in 27 Vt., 140. 

The constitutionality of such statutes has often 
been questioned, but they have been, it is believed, 
uniformly sustained as a valid exercise of the po- 
lice power. Gorman v. Pacific JR, R. Co., 26 Mo., 
441; Wilder v. Maine, etc., R. R. Co., 65 Me., 
333; Tharpe v. Rutland R. R. Co., 27 Vt., 140; 
Missouri Pacific R. R. Co. v. Humes, 115 U. S., 
522 ; Blair v. Milwaukee, etc., R. R. Co., 20 Wis., 
267; Chicago, etc., R. R. Co. v. Dremser, 109 111., 
402; Pa. R. R. Co. v. Reblet, 66 Pa. St., 164; 
Spealmon v. Mo. Pacific R. R. Co., 71 Mo., 434; 
Synall v. Chicago, Rock Island R. R. Co., 50 Iowa, 
338; Am. and Eng. Ency. of L., Vol. 7, p. 910, 
and cases cited; and many other cases. 

The objection that the Act creates a new judicial 

tribunal for the appraisement of values of stock 

killed upon an unfenced road is not well founded. 

If the valuation fixed by the board of appraisers 

was made conclusive evidence against the company, 

the act would be subject to severe criticism. But 

by the express terms of the statute this appraise- 
32—7 p 



498 JACKSON : 



Railroads v. Crider et al. 



ment is only made ^^ prima facie evidence of the 
value of said stock, or damage as to that crippled." 
If the company admit its liability and pay this 
value, that is the end of the matter. If it chooses 
to contest either the valuation or its liability, it 
may do so, and every opportunity is afforded it to 
present its defenses. In such contest this appraise- 
ment is only prima facie evidence of the single 
fact of value. It is not made evidence as to the 
ownership of the stock, nor that the stock was 
kilied by the moving engines or cars of the de- 
fendant, nor that the track of the defendant road 
was unfenced. As prima facie evidence of value, it 
will stand in lieu of proof until some evidence 
contradicting it is submitted. When this is done, 
the question of value, like all other questions of 
fact necessary to make out the plaintiff's case, 
must be determined upon the preponderance of 
proof. 

The fact that three sworn and disinterested 
appraisers, after examination of the animals, have 
agreed upon and certified to a certain valuation, 
is made by the statute prima facie evidence of the 
value. There can be no serious doubt as to the 
power of the Legislature to make such an appraise- 
ment, although without notice, prima facie evidence 
of the truth of the appraisement. Concerning the 
power of the Legislature, an eminent authority says: 

"As to what shall be evidence, and which party 
shall assume the burden of proof in civil cases, its 
authority is practically unrestricted, so long as its 



APRIL TERM, 1892. 499 

Railroads v. Crider et al. 

regulations are impartial and uniform; but it has 
no power to establish rules which, under pretense 
of regulating the presentation of evidence, go as 
far as altogether to preclude a party from exhibit- 
ing his rights." Cooley on Const. Lim., side-page 
368. 

With the limitations stated, such statutes as 
the one in question have been uniformly upheld. 
Code, § 1301, wTiich provides that the burden of 
proof shall be upon the railroad company, when 
sued for killing stock, to show that the accident 
was unavoidable, is' a striking instance of an Act 
shifting the burden of proof to the extent of re- 
quiring the defendant to prove a negative. So, 
by another statute, the ex 'parte certificate of a 
!N'otary Public that he had made a demand and 
given notice of the dishonor of negotiable paper, 
is made prima facie evidence of the fact of such 
notice. So, statutes which make tax-deeds prima 
facie evidence that all the proceedings have been 
regular, have been upheld, although such deed 
would not otherwise have any such force or eft'ect, 
and the party claiming under one would, at com- 
mon law, have to establish the regularity of the 
successive steps leading to the deed. Statutes 
making defective records evidence of valid convey- 
ances are of a similar nature. 

Third. — Does the imposition of an attorney's fee, 
in case the railroad company unsuccessfully liti- 
gates, violate any constitutional right? 

In our view, plaintiff can only recover such fee 



500 JACKSON : 



Railroads 7'. Crider et ai. 



. in case there is a recovery of the appraised valu- 
ation. If he fails to sustain the appraisement, the 
defense has been, in part, just, and the defendant 
is not^, to be onerated with any fee. But it is 
said that the effect of this provision is to compel 
the company to pay the appraised value or submit 
to the imposition of a penalty in case it elects to 
exhibit its defenses in the Courts of the country 
and shall be unsuccessful. It is urged that this 
is the imposition of a burden upon one class of 
litigants in favor of another, and violates the con- 
stitutional rule which requires equality of right, 
privilege, and exemption. These objections over- 
look the fact that this legislation is intended to 
compel railroad companies to fence in their tracks; 
and that the liability imposed is a consequence of 
the failure of the offending company to adopt so 
necessary a means toward the protection of the 
property of others, and as a precaution against ac- 
cidents resulting from the presence of animals on 
the road, thus endangering the safety of those 
controlling and those using so dangerous a , mode 
of conveyance. If the State may, in the exer- 
cise of its police powers, compel all railroad com- 
panies to fence in their tracks, it may enforce 
such policy by making the offending company 
liable to all who sustain injury by neglecting 
such precaution. To this effect is the line of 
decisions we have already cited. To attain this 
end, it is not obliged to stop at mere compensa- 
tion, for it may blend public and private in- 



APRIL TERM, 1892. 501 



Railroads v. Crider ei al. 



terests by permitting a recovery in excess of act- 
ual damages. 

This principle finds illustration in the common 
law, which permits, in cases where the wrong is 
so gross as to demand punishment, a recovery of 
a sum in excess of mere compensation, as exemplary 
or "punitive damages. In many cases where such 
damages are admissible, the interests of society and 
of the person injured are united, and this additional 
damage inflicted is permitted to be taken by the 
individual injured, although it is imposed as a 
punishment in the interest of the public. 

If at common law the damages inflicted upon a 
wrong-doer may be in excess of mere compensa- 
tion, whenever the interests of societv are affected 
or are to be subserved, it must be obvious that 
the law-making power may prescribe the measure 
of such additional damage and determine its dis- 
position. 

Upon this ground, statutes imposing double dam- 
ages against unfenced^ railroads have been sustained 
as within the police power of the State. In the 
case of Railroad v. Humes the constitutionality of 
a statute of Missouri imposing double damages 
upon unfenced railroads for live-stock killed or 
injured, was involved. The statute had been sus- 
tained by the Court of Missouri. Upon writ of 
error to the United States Supreme Court, a similar 
conclusion was reached. The j^rovisions of the 
Constitution of the United States in regard to 
"due process of law," etc., being substantially 



502 JACKSOX : 



Railroads z; Crider ^/ a/. 



identical with that in the Constitutions of both 
Missouri and Tennessee. 

"The power of the State," said that Court, ''to 
impose fines and penalties for a violation of its 
statutory requirements is coeval with government, 
and the mode in which tliey shall be enforced, 
whether at the suit of a private person or at the 
suit of the public, and what disposition shall be 
made of the amount collected, ard merely matters 
of legislative discretion. The statutes of nearly 
every State in the Union provide for the increase 
of damages where the injury complained of results 
from the neglect of duties imposed for the better 
security of life and property, and make that in- 
crease in many cases double, in some cases treble, 
and even quadruple the actual damages. And ex- 
perience favors this legislation as the most efficient 
mode of preventing, with the least- inconvenience, 
the commission of injuries. The injury actually 
received is often so small that in manv cases no 
effort would be made by the sufferers to obtain 
redress, if the interest were not supported by the 
imposition of punitive damages." 115 TJ. S., 523. 

The State has not, by this Act, imposed double 
or triple damages, as it might have done, but it 
has subjected the offending company to actual dam- 
ages, and to an increase of this damage to the 
extent of the reasonable attorney's fees incurred' by 
the successful plaintiff in the establishment of his 
claim. This additional penalty is not imposed ex- 
cept upon the contingency that the company shall 



APRIL TERM, 1892. 503 

Railroads v. Crider et al. 

refuse settlement upon the basis of the j>rima fade 
valuation, and upon the further condition that the 
owner of the live-stock killed or injured shall es- 
tablish both the liability of the company and that 
the appraised value was not excessive. What the 
State may impose as a penalty without condition, 
it may impose subject to condition. The measure 
of the damages for failure to fence, as well as the 
disposition of any recovery in excess of actual 
compensation was wholly within the legislative dis- 
cretion. The addition or increase of damages, in 
case the company unsuccessfully contests its liabil- 
ity for the full amount of the appraisement, is to 
be measured by the reasonable expense thrown 
upon the plaintiff in what is thereby established 
to have been an unnecessary litigation. 

The view we have taken of this Act, its ob- 
jects and scope, excludes the assumption that the 

« 

statute is one merely imposing a burden upon one 
class of litigants not borne by all others. The 
subject of the legislation being within, the police 
power of the State, it is not objectionable that 
additional or increased damages are imposed upon 
such terms and subject to such contingencies as 
the public interest shall demand. 

Our Code furnishes many illustrations of the im- 
position of penalties and forfeitures under the po- 
lice power of the State. In some cases such 
penalties are turned over to the relator, though 
he have no special interest. In others, the re- 
covery is divided between the State and the party 



504 JACKSON : 



Railroads v. Crider fi al. 



suing; and in still others, the State retains the 
whole. 

We have been cited to two cases which are 
supposed to support the contention of the learned 
counsel that the imposition of the reasonable fee 
of an attorney is invalid, as partial legislation. 
Railroad v. Williams, 31 Am. and Eng. R. R. Cases, 
555 ; Wilder v. Railroad, 35 Am. and Eng. R. R. 
Cases, 162. The first is an Arkansas case, and arose 
under a statute of that State entitled, "An Act to 
provide for the settlement of claims for stock killed 
or injured by railroads." The statute provided for 
an arbitration, and imposed the fees of adversary 
counsel in case the award was not paid. .The 
case is to be distinguished from this in many 
particulars. The Act was not one intended to 
compel the fencing of railroads, and was purely 
an effort to compel submission to an award. The 
other arose under an Act in its general scope very 
much like our own. The Court treated it alone 
from the stand-point that it was the imposition of 
a burden upon one class of litigants not imposed 
upon all others. The view we have taken, that 
such added liability was but the imposition of ad- 
ditional damages, and was a valid exercise of the 
police power, was never considered. Acts similar 
to our own in respect to this feature have been 
sustained by reasoning more satisfactory to us. 
Railroad v. Duggan, 109 111., 537 (S. C, 20 Am. 
and Eng. R. R. Cases, 489) ; Railroad v. Mower, 
16 Kansas, 573; Railroad v. Shirley, 20 Kansas, 



APRIL TERM, 1892. 505 



Railroads z\ C rider ef al. 



660; Railroad v. Olney, 13 Am. and Eng. R. R. 
Cases, 650. 

Fourth. — In the case of Railroad v. Crider, the 
learned Circuit Judge construed this Act as re- 
quiring the Judge trying the case to adjudge what 
should be reasonable attorney's fees, and to add 
such fee to the amount of plaintift*'s recovery as 
determined by the jury. In the other cases heard 
along with the Crider case, but coming from a 
different circuit, the question of the amount of 
the fee was submitted to the jury. The conten- 
tion now made is, that the Act requires the 
amount of such additional damage to be fixed by 
the Judge, and that the defendant is therefore de- 
nied the right of jury trial. The language of 
the Act concerning this matter is that this fee 
shall "be fixed by the Court trying the case." 
The meaning of "Court" dep^ds upon the con- 
nection in which it is used. It may refer to the 
place where justice is judicially administered. The 
term, as defined by Mr. Bouvier in his dictionary, 
is this: "The presence of a sufficient number of 
the members of a body in the government, to 
which the public administration of justice is dele- 
gated, regularly convened in an authorized place, 
at an appointed time, engaged in the full and 
regular performance of its duties." 

To determine whether the term is used as sig- 
nifying the Judge alone, or the tribunal, which 
may consist of Judge and jury, resort must be 
had — if the term be used with reference to the 



506 JACKSON : 



Railroads r*. Crider ft al. 



form of trial — to the nature of the questions sub- 
mitted and to the mode generally in use in the 
tribunal for the trial of similar questions. Clearly, 
if the case is one in which a jury trial is per- 
missible, and the other matters involved have, in 
fact, been submitted to a jury, then this matter 
of the amount of such fee is to be submitted 
likewise to the jury. The " Court trying the 
cause," in that event, would be the Judge and 
jury. To construe this clause otherwise would be 
to suppose that the Legislature intended, in a jury 
case, to withdraw one question of fact and submit 
it to the Judge alone. When an Act is of 
doubtful meaning, that construction should be given 
to it which shall be found in harmony with the 
Constitution. Home v. Railroad^ 1 Cold., 74; Cole 
Mfg. Co. V. Falls, 90 Tenn., 466. 

Fifth. — It has been urged that this statute is 
invalid because it amends in part, and repeals in 
part. Code (M. k V.), §§ 1298, 1299, and 1300, with- 
out reciting or otherwise mentioning the amended 
or repealed laws, and that this is prohibited by 
Art. II., Sec. 17, of the Constitution. 

The sections of the Code referred to are those 
requiring all railroad companies to observe certain 
precautions against accidents, and making them re- 
sponsible for all damages resulting from failure, and 
exonerating them from liability for damage to per- 
sons or property when in the observance of the 
statute. 

The eftect of this legislation upon unfeixced 



\ 



APRIL TERM, 1892. 507 

Railroads v, Crider et al, 

railroads, and as to the animals mentioned in the 
Act, greatly modifies the former law. But this is 
brought about by the conflict between an affirma- 
tive statute laying down definitely a new rule, 
and the old law. The effect may necessarily be 
the repeal, modification, or amendment of the law 
as it formerly stood. 

The constitutional provision requiring laws re- 
pealing or amending former laws to recite in the 
caption or otherwise the law repealed or amended, 
does not apply to repeals or amendments which 
result from necessary implication. Home Insurance 
Co. V. Taxing District^ 4 Lea, 644; Ballentine v. 
Mayor, 15 Lea, 633. 

The judgment in the Crider case must be mod- 
ified by excluding the attorney's fee added to the 
verdict by action of the Circuit Judge. 

The judgments in the other cases will be affirmed. 



508 



JACKSON: 



Railroads 7'. Sadler et al. 



91 506 
110 611 



91 
1116 



508 
514 



Railroad y. Sadler. Same v. Woodruff. 



{Jackson. May 10, 1892.) 

Railroads. Construction of Acts iSgi^ Ch. joi, 

Live>stock killed or injured by running upon and falling from a trestle 
in consequence of fright caused by a moving train are not ** killed or 
crippled by any train of cars or locomotive" within the meaning of 
the Acts 1891, Ch. loi, making unfenced railroads absolutely liable 
for live-stock killed or injured upon or near their tracks by actual col- 
lision with their moving trains. Only cases of killing or injury of 
live-stock by actual collision with moving trains, etc., are within said 
Act. 

Act construed: Acts 1891, Ch. loi. 

Cases cited and approved: Holder v. Railroad, 11 Lea, 176; 22 Am. 
and Eng. R. R. Cas., 565; 13 /</., 570; 19 ///., 610; 23 /</., 188; 31 
Id., 512, 569. 

SADLER CASE. 

Appeal in error from Circuit Court of Weakley 
County. W. H. Swiggart, J. 

Joseph E. Jones for Railroad. 
Charles M. Ewing for Sadler. 

WOODRUFF CASE. 

Appeal in error from Circuit Court of Weakley 
County. W. H. Swiggart, J. 

Barr & Jones for Railroad. 

AViNSTEAD & Thomas for Woodruff. 



APRIL TERM, 1892. 509 



Railroads v. Sadler et al. 



LuRTON, J. The Act of 1891, Ch. 101, making 
unfenced railroads absolutely liable for all stock 
killed or injured on or near their tracks applies 
only to injuries resulting from actual collision with 
a moving engine or car. The language of the Act 
forbids any other construction. The injury must 
be the direct result of contact with "moving trains, 
cars, or .engine." This construction had been given 
to the old law. Code (M. & V.), §§ 1298-1300 ; 
Holder V. Railroad^ 11 Lea, 176. 

The later Act is no more explicit on this point 
than the former. Similar acts in other States have 
been uniformly construed as applicable only to cases 
of injury from direct collision. 

Numerous cases are cited to this effect in the 
seventh volume Am. and Eng. Ency. of Law, 928. 

To the same effect are the following : Burlington 
and Missouri Railroad v. Shoemaker, a Nebraska 
case, reported in 22 Am. and Eng. R. R. Cases, 565 ; 
Holder v. Chicago, etc., R. R. Co,, 13 Am. and 
Eng. R. R. Cases, 570; Croy v. Louisville, etc, R, 
R. Co., 19 Am. and Eng. R. R. Cases, '610; 
Knight v. N. Y. Sf Western R. R., an opinion of 
Court of Appeals of New York, 99 N. Y., 25 
(S. C, 23 Am. and Eng. R. R. Cases, 188); In- 
ternational ^ G. N. R. R. V. Hughes, a Texas 
case, reported in 31 Am. and Eng. R. R. Cases, 
569; Penn. Co. v. Dunlap, Supreme Court of In- 
diana, reported in 31 Am. and Eng. R. R. Cases, 
512. 

In these cases the animals seem, from fright, to 



510 JACKSON : 



Railroads v. Sadler et^al. 



have run ahead of the moving train and onto a 
trestle, from which they fell, not being touched 
by the moving train. 

The charge was erroneous upon this point, and 
for this error both cases must be reversed. 



APRIL TERM, 1892. 511 



Memphis v. Carrington. 



Memphis r. Carrington. 
{Jackson. May 19, 1892.) 

1. Taxation. Of insurance agencies by city. Construction of ordinance 

The tax is laid upon insurance agencies, and not upon insurance com- 
panies, by the clause in the Act authorizing creation of taxing dis- 
tricts which imposes a privilege tax of $200 per annum for each 
company represented, '*upon the privilege of opening and establish- 
ing an office or agency for the insurance of fire> life, or accident in 
the taxing district for companies not chartered by the laws of the 
State of Tennessee." 

Acts construed: Acts 1879, Ch. 84. 

Cases cited: Insurance Company v. Taxing District, 4 Lea, 644; 120 
U. S., 489; 10 Wall., 566. 

2. Repeal of Statutes. Not effected by implicatiott, when. 

And hence said tax upon insurance agencies for municipal purposes is 
not repealed by implication by the imposition of taxes upon insurance 
companies in subsequent tax-laws providing revenue for State and 
county purposes in these terms, to wit: "That all insurance com- 
panies shall pay to the Insurance Commissioner the following taxes 
in lieu of all other taxes, to wit: Two and one-half per cent, on gross 
premium receipts for foreign insurance companies." There is no 
necessary repugnancy between the two statutes. 



FROM SHELBY. 



Appeal in error from Circuit Court of Shelby 
County. L. H. Estes, J. 



512 J ACKSON 



Memphis f. Carrinjjion. 



F. T. Edmondson and Metcalf & Walker for 
Memphis. 

Craft & Craft and Turlby & Wright for Car- 
rington. 

> 

LuRTON, J. The defendants, Carrington, Mason 
& Sons and F. B. Hunter, are insurance agents, 
and have their office and asrencv established in 
tlie city of Memphis^ These suits were brought 
to recover from them the privilege tax claimed to 
be due to the plaintiff under an Act of the Leg- 
islature, passed January 29, 1879, known as the 
"' Taxing District Charter Act." The seventh sec- 
tion thereof is as follows : 

*'jBe it further enacted^ That the following named 
kinds of business and occupations be, and the 
same are hereby, declared taxable privileges, and 
shall be taxed as herein provided, and the exer- 
cising of any of said privileges without first pay- 
ing the tax hereby fixed, shall be a misdemeanor.'* 

Section 53 of the same Act is in these words: 
" Upon the privilege of opening and establishing 
an office or agency for the insurance of fire, life, 
or accident in the taxing district for companies 
not chartered by the laws of the State of Tennes- 
see, $200 per annum for each company represented, 
payable quarterly in advance." 

This Act was amended in 1881, by Ch. 85, 
Sec. 18, so as to reduce said privilege tax from 
$200 to $100. 

The defendants resist the collection of this tax, 



APRIL TERM, 1892. 513 



Memphis r. Carrington. 



upon the ground that Section 53, which imposes 
it, has been repealed by the revenue Acts of 
1887, 1889, and 1891, each of which contains a 
provision substantially as follows : " That all in- 
surance companies shall pay to the Insurance Com- 
missioner the following taxes in lieu of all other 
taxes, to wit: Two and one- half per cent, on 
gross preipium receipts for foreign insurance com- 
panies." 

The first question which arises is as to whether 
this privilege tax is due from the agent personally 
or from the insurance companies represented. In 
view of doubts as to the proper construction of 
the A.ct in this regard, both the agents and the 
companies have been made defendants in the first 
case. 

Upon careful consideration, we are of opin- 
ion that this tax is upon the privilege of opening 
and establishing an office or agency for the repre- 
sentation of foreign insurance companies. The 
insurance companies have not opened an office, but 
Messrs. Carrington, Mason & Sons have. 

The business they propose to do is the repre- 
sentation of insurance companies not chartered by 
this State. The doing of such business, and the 
conducting of such an agency, is made a privilege. 
The tax is graduated by the number of companies 
represented. 

Very many kinds of business and occupations 

are enumerated in the same Act, and made taxable 

privileges, such as auctioneers, steam-boat agents, 
33— 7 p 



514 JACKSON : 



Memphis v, Carrington. 



claim agents, real estate agents, etc. The tax, by 
the express words of the Act, is "upon the priv- 
ilege of opening and establishing an office or 
agency * * * for companies not char- 
tered by the laws of the State of Tennessee." 

The case of Flcklin et al, v. Taxing District^ de- 
cided by this Court in 1889, and recently affirmed 
by the Supreme Court of the United States, is in 
point as to the proper construction of this section. 
In that case it appeared that Ficklin was engaged 
in and did business as a general merchandise 
broker, and, as, such, was taxed under Sec. 9, Ch. 
96, of the amended taxing district Act of 188V 
Claiming to represent only foreign principals, Fick- 
lin resisted the tax, upon the ground that it was 
a tax upon his principals, and, as such, a tax 
upon interstate commerce, and that the tax fell 
within the principle of the case of Rohbins v. Tax- 
ing District, 120 IT. S., 489. This Court thought 
the case was to be distinguished, in that Robbins 
represented a single firm as their agent or drum- 
mer, while Ficklin held himself out as a general 
merchandise broker, and that the tax was put upon 
the privilege or business of a general merchandise 
broker, and was not, therefore, in fact or in effect 
a tax upon the persons or firms represented by 
him. 

This view was affirmed, the opinion not being 
yet reported. It is true that the question there 
was as to whether the tax was one upon inter- 
state commerce, and that no such question can 



APRIL TERM, 1892. 515 



Memphis ?/. Carrington. 



arise here, inasmuch as the business of insurance 
is not commerce. Liverpool and London Fire Ins. 
Co. V. Oliver, 10 Wall., 566. But the case is ap- 
plicable, in that the tax was held to be upon the 
agent personally, and not one upon the persons 
represented by him. 

The case of the Home Insurance Company v. 
Taxing District^ 4 Lea, 644, has been relied upon 
as determining that this tax is one upon the in- 
surance companies, and not upon the agency. 
That was an agreed case, "to test the liability of 
the insurance companies doing business in the Tax- 
ing District of Shelby County to pay a privilege 
tax to the municipality." The sole question sub- 
mitted and argued, and the sole question decided, 
as is shown by the opinion itself, was whether or 
not the Act of 1875, entitled "An Act to regu- 
late the business of fire and all except life insur- 
ance companies," whereby a tax was imposed upon 
insurance companies which shall be in lieu of all 
other taxes, was repealed by section fifty-three of 
the subsequent taxing district Act of 1879. The 
Court was not called upon and did not determine 
the question here presented. The tax being im- 
posed on the agent personally, and not on the 
company represented, it was not aff'ected by the 
legislation regarding a tax upon the companies. 

Judgment reversed, and judgment here in ac- 
cordance with this opinion. 



516 JACKSON: 



Starnes r. Railroad. 



Starnes V. Railroad. 
{Jackson. May 26, 1892.) 

1. Common Carrier. Contract fixing value of Irt'e-stock shipped, valid. 

Doctrine re-affirmed that a stipulation in a bill of lading for the ship- 
ment of live-stock, fixing values of the animals delivered for trans- 
portation, is valid, if fair and reasonable in itself, ' based upon a 
sufficient consideration, and freely and understandingly assented to 
by the shipper, although the values thus fixed are materially less than . 
those shown by the proof. 

Cases cited and approved : Railroad v. Sowell, 90 Tenn., 17; Railroad 
V. Wynn, 88 Tenn., 330; 112 U. S., 331. 

2. Same. Construction of clause limiting value of live animals. 

Bill of lading for shipment of live-stock provided that in the event 
damage should occur for which the carrier would be liable, **the 
value at the place and date of shipment shall govern the settlement, 
in which the amount claimed shall not exceed, for a stallion or jack, 
$200; for a horse or mule, $100; * * * which amounts, it is 
agreed, are as much as such stock as are herein agreed to be trans- 
ported are reasonably worth." The proof showed that the thirteen 
horses shipped were worth, at date and place of shipment, from $130 
to $235 each; and that nine of these were injured in course of trans- 
portation. Of the injured horses one died, and the value of the 
other eight were impaired from $25 to $100 each. All the injured 
horses brought over $ioo, except one that brought $90. The Court 
instructed the jury that the shipper could recover only $100 for the 
dead horse, and $10 for the injured horse that brought only $90. 

Held: Court's instructions are erroneous. Under said contract, the 
carrier was liable for damage done each horse to the extent of $100, 
without regard to his value after receiving the injury. 



FROM SHELBY. 



Appeal in error from Circuit Court of Shelby 
County. L. H. Estes, J. 



I i 

I 



APRIL TERM, 1892. 517 

Starnes if. Railroad. 

W. L. Clapp and Metcalp & Walker for 
Starnes. 

J. P. Houston and McCorry & Bond for Rail- 
road. 

Caldwell, J. In June, 1889, J. W. Starnes 
delivered to the Louisville and Nashville liailroad 
Company, as a common carrier, thirteen horses, to 
be transported by rai*l from Lexington, Kentucky, 
to Memphis, Tennessee. 

This action was brought by Starnes against the 
carrier to recover damages for injuries alleged to 
have been received by the stock in course of trans- 
portation. 

Plaintift' claimed that he had been damaged to 
the extent of $450, and sued for that amount. 
Court and jury allowed him a recovery for only 
$110, with interest, and he appealed in error. 

The horses cost the plaintift', and were worth 
at place of shipment, $130 to $235 each. After 
much delay and circuity of route, they reached 
their destination, nine of them being in a damaged 
condition. One of the nine died the next day 
after arrival, and the other eight were impaired in 
value from $25 to $100 each. 

The horses were bought for sale on the Memphis 
market, and, there, those that survived were sold, 
at such prices as could be had by the exercise of 
due care and diligence. Eleven were sold for 
various sums above $100 each, and one was sold 
for $90. 



618 JACKSON: 



Starnes v. Railroad. 



The shipment was made under a "live-stock 
contract," which contained the following stipulation: 
"And it is further agreed that should damage 
occur for which the said party of the first part, 
may be liable, the value at the place and date of 
shipment shall govern the settlement, in whicli the 
amount claimed shall not exceed, for a stallion or 
jack, $200; for a horse or mule, $100; * * * 
which amounts, it is agreed, are as much as such 
stock as are herein agreed to be transported are 
reasonably worth." This is a valid limitation of 
the liability of the carrier. Railway Company v. 
JSoH'cll, 6 Pickle, 17; Railway Company v. Wynn, 
4 Pickle, 330; Hart'\. Penn. Railroad Company^ 
112 U. S., 331. 

With reference to it the trial Judge said to the 
jury: "This clause fixes the value of the stock at 
the point and date of shipment. So that, if you 
find from the evidence that any of t!ie stock 
brought more than or as much as the agreed value 
of $100 each, then the Court charges you there 
can be no recovery in this case for such stock as 
sold for $100 per head." 

Upon this instruction the jury returned a verdict 
for $100 as damages for the horse that died, and 
for $10 as damages for injuries to the one that 
sold for $90; but refused a recovery for injuries 
to those which sold for as much as $100 each. 
In other words, the jury did their plain duty, and 
applied the law, as given them by the Court, to 
the facts of the case. 



^ J 



APRIL TERM, 1892. 519 

Starnes v. Railroad. 

Bat it is contended, and we agree, that the in- 
struction was erroneous. The Court at this point 
should have told the jury that the stipulation lim- 
ited the liability of the defendant to $100 for 
each animal injured or killed, and that they should 
assess the damages according to the real injury 
caused by the carrier's negligeniiie, in no instance 
exceeding $100 per head. 

The question is not, what did each .animal 
bring in the market in its injured condition; but, 
rather, to what extent and in what amount, not 
above $100, was it damaged through the fault of 
the defendant. Not what value is left in the an- 
imal, but what elements of value were wrongfully 
taken away. To illustrate : A horse shipped un- 
der such a contract loses one eye through the neg- 
ligence of the carrier, and the owner sues for 
damages. The question, in such a case, is. How 
much has the animal been damaged by the loss 
of the eye? and not. Will he sell for as much as 
$100 with but one eye? 

The agreement is that the carrier shall not be 
liable for more than the $100 in case of damage; 
not that no liability shall attach if the horse, though 
injured, should sell for as much as that sum. 

The true measure of liability, under the con- 
tract, is the amount of actual damage resulting 
from the negligence of the carrier, in no case to 
exceed the sum stipulated. This is the most nat- 
ural and reasonable construction of the contract ; 
it is fair and just to both parties. A shipper 



620 JACKSON : 

J 



Starnes v. Railroad. 



will not be heard to claim a recovery for dam- 
age or loss, however great, in excess of amount 
named in the bill of lading as the agreed value; 
nor will the carrier be allowed to deny liability 
for actual damage up to that amount. "The car- 
rier must respond for negligence up to that value,'* 
but no further. 112 U. S., 341 and 343. 
Reverse and remand. 



APRIL TERM, 1892. 621 



Hill V. Slate. 



IIiLL V. State. 
{Jackson. May 26, 1892.) 

1. Criminal Practice. Impeachment of defendant testifying in his (nvn 

behalf 

Doctrftie re-affirmed that a defendant in a criminal case who testifies in 
his own behalf is subject to impeachment by the same method and to 
the same extent as other witnesses. 

Case cited and approved : Peck v. State, 86Tenn., 259; 29 Am. R., 506. 

2. Criminal Evidence. Cross-examination as to other charges against vfii- 

ness, 

.Witness may be asked, on cross-examination, if he has been indicted for 
an infamous crime; but it is error to permit him to be asked, over 
objection, if he had been charged with such crime, without indicating 
in the question the manner in which the charge had been made. 

Case cited and approved: Brasswell v. State, 3 Leg. Rep., 283. 

3. Same. Same. Witness"* explanation. 

If witness, in response to question on cross-examination, admits that he 
has been charged with an infamous crime, he is entitled to explain 
that he was not guilty of such crime, and his explanation and denial 
of guilt is conclusive, and not subject to rebuttal. 

Cases cited and approved: Rocco v. Parczyk, 9 Lea, 331; Franklin v, 
Franklin, 90 Tenn., 44. 

Question resen>ed: If witness denies that he has been indicted for infa- 
mous crime, may he be impeached by production of record? 



FROM CARROLL. 



Appeal in error from Circuit Court of Carroll 
County. John R. Bond, J. 



522 JACKSON 



Hill 7'. Stale. 



L. L. Hawkins for Hill. 
Attorney-general Pickle for State. 

Caldwell, J. Plaintiff in error was convicted 
in the Circuit Court of Carroll County for carry- 
ing a pistol. 

Under the recent statute, he went on flie wit- 
ness-stand and testified in his own behalf. 

On cross-examination he was asked and required • 
to answer, over objection, " if he had not been 
charged with stealing money from a negro in 
Huntingdon, and if he did not pay him back the 
money?" 

He answered that he " had been charged with 
stealing money from a negro in Huntingdon, and 
had given the negro some money to stop the mat- 
ter;" that "he did not steal the money," but 
"compromised the matter by paying some money," 
because "he did not want his father to hear of 
the charge." 

Touching this evidence, the record recites : 
" The Court here stated to the jury that they 
would only look to the question as to the charge 
against the witness as affecting his credibility as a 
witness, and they would attach such weight to it 
as in their judgment it might be entitled to." 

The action of the trial Judge was erroneous, 
both with respect to the form of the question and 
as to the effect to be given the answer. 

First. — The question was incompetent, and should 



APRIL TERM, 1892. 523 

Hill V. State. 

have been rejected for ambiguity, in that it did 
not state whether the charge inquired about had 
been preferred in judicial proceeding, or by indict- 
ment of grand jury, or was the mere personal ac- 
cusation of some individual. If the latter was 
meant, the inquiry was improper, for reasons too 
obvious to require ^numeration. As tending to 
disgrace a witness, or show his unreliability, he 
may, with propriety, be asked if he has not been 
indicted for an infamous crime, as in the case of 
Brassrcell v. The State^ 3 Legal Reporter, 283; but 
that rule does not justify the question propounded 
in this case. Great as the latitude of cross-exam-' 
ination is, it does not warrant the investigation of 
mere personal imputations, which may be easily 
instigated and multiplied by unscrupulous persons, 
to the injury or destruction of any witness. 

Second, — Instead of instructing the jury as he did 
with reference to this evidence, the Court should 
have told them that, inasmuch as the defendant 
denied the truth of the charge of larceny, they 
should not, for any purpose, consider the fact that 
such a charge had been made against him. 

The matter sought to be introduced was entirely 
irrelevant and collateral to the offense for which 
the prisoner was being tried, and reflected no light 
upon it; for that reason his response was binding 
on the State. The Court required him to answer. 
After admitting that he had been charged as in- 
dicated in the question, the witness had a right 
to go further, and deny the truth of ike charge. 



524 JACKSON: 



Hill V. State. 



Having done so, his denial was conclusive. 1 
Wharton on Evi., Sees. 547 and 559 ; . 1 Greenleaf 
on Evi., Sees. 449 and 459 ; Rocco v. Parczyk^ 9 
Lea 331 ; Franklin v. Fraiiklin, 6 Pickle, 44. 

Having put himself on the stand, the prisoner 
was subject to impeachment as any other witness 
would have been {Peck v. The State, 2 Pickle, 259; 
State v. Clinton, 29 Am. R., 506), but not further 
or otherwise. 

His denial of the truthfulness of the independ- 
ent charge should have ended that matter to all 
intents and purposes in this case. The jury should 
not have been allowed to consider the collateral 
charge in any way — as affecting his credibility or 
otherwise. 

Whether the statement of a witness who denies 
that he has been indicted or convicted for a given 
offense may be disproved and his credibility im- 
peached by production of the record, is a question 
quite different from that herein considered. 

Reverse and remand. 



APRIL TERM, 1892. 525* 



Cole Manufacturing Company v. Collier. 



Cole Manufacturing Company i;. Collier. 



(Jackson. June 4, 1892.) 



1. Arbitrament and Award. Provision in building contract for submis- 

sion tOf not a bar to suit on the contract^ when. 

A provision in a building contract that in case differences should arise 
between the parties "as to the quality of work or materials, or any 
other question that may arise under this contract, the same shall be 
settled by arbitration, each party selecting a good man; and, in the 
event of their disagreeing, these two shall select a third party, and 
their decision shall be Bnal," constitutes no bar to a suit brought 
upon the original contract by a party who had failed or refused to 
make an effort for settlement of differences by arbitration. 

Cases cited: 137 U. S., 370; 136 U. S., 242: 123 U. S., 40. 

2. Supreme Court. Will not reviie lower CourC s discretion in disalioiving 

interest. 

Supreme Court will not reverse the judgment of the lower Court dis- 
allowing interest on the debt sued for, when the matter of allowing 
interest rested in the sound discretion of the court, and there is no 
manifest abuse of that discretion. 



FROM SHELBY. 



Appeal from Chancery Court of Shelby County. 
W. D. Beard, Ch. 



Myers & Sneed for Cole Manufacturing Co. 



526 JACKSOK : 



Cole Manufacturing Company v. Collier. 

W. M. Smith, Casey Young, and Gantt & 
Patterson for Collier. 

L. Lehman, Sp. J. The bill in this cause was 
preferred by the complainant, a corporation, to re- 
cover from the defendant, W. A. Collier, the price 
and value of labor and material performed and fur- 
nished in the construction of a building, under a 
written agreement entered into between them on 
November 14, 1889, the portion of which applica- 
ble to the question raised is as follows: 

"It is further agreed that in case any differ- 
ence should arise between the said Collier and the 
Cole Manufacturing Company as to the quality of 
work or materials, or any other question that may 
arise under this contract, the same shall be settled 
by arbitration, each party* selecting a good man; 
and, in the event of their disagreeing, these two 
shall select a third party, and their decision shall 
be final. In consideration of the above, said Col- 
lier is to pay the said Cole Manufacturing Com- 
pany nine thousand dollars ($9,000), more or les?, 
as the amount may be, which amount the said 
Collier will secure by deed of trust on nine acres 
of li\nd in the Kinnay Ileistand subdivision of 
land; said trust deed to be drawn at once, and 
held by E. C. Jones until said building is fin- 
ished, when he will deliver the same to Mr. W. 
I. Cole." 

W. I. Cole was the president of complainant 
company. 



APRIL TERM, 1892. 527 

Cole Manufacturing Company 7; Collier. 

The bill further alleges the execution of the 
said trust deed and delivery of it to E. C. Jones; 
and the fcomplainant therein also prayed that the 
said Jones, who is a defendant in the cause, and 
Collier be decreed to deliver up said trust deed; 
and also asked for the enforcement of the same 
to satisfy the amount owing by W. A. Collier to 
the complainant. 

The bill contains averments of various demands 
made for the delivery of the trust deed, and a 
request on the part of the defendant, W. A. Col- 
lier, to have a submission and arbitrament of the 
claims of the plaintiff because of his dissatisfac- 
tion, stated in a general way, with the work done 
and materials furnished by the complainant, and 
which request, it is averred, was made, after con- 
siderable delay, subsequent to the completion of the 
building. The latter allegations are made in the 
bill in order to excuse the refusal of the com- 
plainant to submit the matters to arbitration. 

The defendant, W. A. Collier, demurred to the 
bill, assigning, as ground therefor, the failure and 
refusal of the complainant to arbitrate differences 
under the provisions of the written agreement of 
November 14, 1889. Such demurrer was overruled 
by the Chancellor, and thereupon the defendant, 
W. A. Collier, ^ filed his answer and cross-bill, in 
which he denied that the complainant had complied 
with said contract, and for cross-action set up, in 
a general way, without stating the amount thereof, 
damages accruing to him by reason of the com- 



528 JACKSON : 



Cole Manufacturing Company v. Collier. 



plainaut's failure to comply with its contract, and 
arising from its failure to comply with its agree- 
ment to arbitrate. 

The complainant made no objection to this 
cross-bill by demurrer or otherwise, but answered 
the same. 

The Chancellor rendered his final decree, allow- 
ing the demand of- the complainant, and ordering 
the delivery of said trust deed, and ordering the 
sale of the land embraced therein for the payment 
of the said demand. 

Both parties have appealed. The defendant, W. 
A. Collier, appealed from the entire decree, and 
the complainant, the Cole Manufacturing Company, 
appealed from so much of the decree as excluded 
interest on the amount found due, from -May 1, 
1890, to January 1, 1891, or only allowed interest 
from January 1, 1891. The defendant, W. A. 
Collier, assigns for error that the Court below 
erred in overruling his demurrer and subsequently 
decreeing, on the pleadings and proof, that the 
agreement to arbitrate was not a bar to the suit. 

We do not deem it necessary to consider whether 
the complainant, by allegation or proof, furnished 
an excuse or satisfactory reason for failing or re- 
fusing to submit any matter, in controversy raised 
on either side to arbitration, under the provisions 
of the agreement of November 14, 1889. In the 
condition of this litigation, and under the rules of 
law controlling the issues made by the parties and 
the proof adduced, such inquiry is immaterial. 



APBIL TERM, 1892. 529 



Cole Manufacturing Company v. Collier. 



The position of the defendant is, that in the 
case of any difference or controversy between him 
and the complainant in relation to any of the 
matters contained in their agreement, no suit could 
be brought by the complainant until there had 
been an offer made to settle the controversy by 
arbitration; or, in other words, that an arbitration 
or an effort to arbitrate was a condition precedent 
to the right of the complainant to institute its 
suit. This contention is erroneous.* 

In Hamilton v. Home Ins, Co,, 137 U. S., 370, 
the policy of insurance on which the action was 
based, provided: "In case differences shall arise 
touching any loss or damage, after proof thereof 
has been received in due form, the matter shall, 
at the written request of either party, be submit- 
ted to impartial arbitrators, whose award, in writ- 
ing, shall be binding on the parties as to the 
amount of such loss or damage." The plaintiff 
had refused to enter into arbitration. The instruc- 
tion of the trial Judge to the jury, that the 
plaintiff could not maintain his action because he 
had so refused, was adjudged erroneous. 

In that case a number of decisions are cited, 

which establish the rule that the breach by the 

plaintiff of the agreement to submit to arbitration 

cannot be pleaded in bar of the action on the 

principal contract, unless such agreement expressly 

or by necessary implication made tlie submission a 

condition precedent to the institution of any suit. 

Hamilton v. Home Insurance Company is distin- 
34—7 p 



530 JACKSON : 



Cole Manufacturing Company v. Collier. 



guished by Mr. Justice Gray, who delivered the 
opinion therein, from Hamilton v. Liverpool^ London 
and Globe fns, Co., 136 U. S., 242, wherein the 
policy involved contained an express condition that 
no action should be brought until there had been 
a submission to arbitration. 

In the case of The Excelsior, 123 U. S., 40, 
which involved a liability in admiralty for salvage 
service, the parties had agreed to submit to arbi- 
tration the amount to be paid for the service. 
The defendant made the point that the suit could 
not be maintained because of the omission to sub- 
mit to arbitration, and the Court held the objec- 
tion to be ineffectual, and said that the remedy of 
the defendant, if any, would be in an action for 
breach of agreement to submit. 

In this view of the case, it is also unnecessary 
to discuss or consider the inquiry whether this 
agreement to submit to arbitration was void, be- 
cause it operated to oust the jurisdiction of the 
Courts. 

We have fully investigated the evidence contained 
in the record as to the liability of the defendant, 
W. A. Collier, to the complainant for the amount 
claimed by the plaintiff*, and have therefrom reached 
the conclusion that tlTe complainant has fully es- 
tablished its claim, and that the defendant has 
failed to establish the items set up by way of 
cross-action in his cross-bill. 

There was no error in the action of the Chan- 
cellor in refusing to allow the complainant interest 



APRIL TERM, 1892. 531 



•Cole Manufacturing Company v. Collier. 



prior to January 1, 1891. That was a matter 
which, under estaBlished rules of law, rested en- 
tirely within the sound discretion of the Chancel- 
lor, and with the exercise of which we do not 
feel at liberty to interfere. 

Let the decree of the Chancellor be affirmed. 
The costs of the Chancery Court will be paid as 
adjudged in the Court below, and the co^ts of 
this Court will be divided, one-half thereof to be 
taxed against the complainant, and the other half 
against the defendant, W. A. Collier, 



532 JACKSON : 



Meacham v, Meacham. 



Meacham V, Meacham. 
{Jackson. June 7, 1802.) 

1. Partition. Of land by parol ^ valid. StatuU of frauds. Registration, 

Parol partition of lands is valid. A partition is not a sale, and there- 
fore not within the statute of frauds. A parol partition is not sus- 
ceptible of registration, and therefore not within the registration laws. 

Code construed : \l 2423, 2890 (M. & V.) ; ?? 1758, 2075 (T. & S.). 

2. Homestead. In lands partitioned by parol. 

And hence the right of homestead exists in lands set apart in severalty 
to the head of a family under a parol partition. 

Case cited: J. I. Case Co. ^. Joyce, 89 Tenn., •337. 



FROM LAUDERDALE. 



Appeal from Chancery Court of Lauderdale 
County. H. J. Livingston, Cli. 

Thos. Steele for Complainant. 

W. E. Lynn for Defendant. 

L. Lehman, Sp. J. The defendant, Jesse Meacham, 
as appears from the record, on July 24, 1890, re- 
covered a judgment against the complainant before 



APRIL TERM, 1892. 533 

Meacham v, Meacham. ' 

a Justice of the Peace in Lauderdale County, for 
the sum of $435 and costs of the suit, and caused 
an* execution issued thereon to be levied on the 
undivided six-sevenths of certain lands owned by 
the complainant and D. B. Norvel, who is joined 
as a defendant in the cause. Such execution, so 
levied, with the papers in the suit wherein the 
judgment was rendered, were filed in the Circuit 
Court of Lauderdale County for the purpose of 
having the said six sevenths of said land con- 
demned and sold to pay the said judgment.' 

The complainant alleges in the bill that, prior to 
the levy of said execution, he and Defendant Nor- 
vel partitioned the said land by a favol partition, 
and set apart their shares thereof in severalty. 
The bill sets forth by proper description the part 
of the land which was, under that partition, allotted 
to the complainant as well as that which was as- 
signed to Norvel. 

It is further averred that the said land, so allotted 
to complainant, is worth less than $1,000, and that 
he is the head of a family residing in this State, 
and is entitled to hold the same as his homestead, 
exempt from levy and sale under execution. 

Upon the allegations of the bill, the sale of the 
land was enjoined in limine. The defendant, Jesse 
Meacham, demurred to the bill, on the ground that 
the alleged 'parol partition of the land was ineffect- 
ual as against a creditor of either of the tenants 
in common, which demurrer was by the Chancellor 
overruled. 



534 JACKSON 



Meacliam z'. Meacham. 



The defendant, Jesse Meacham, answered the 
bill, denying the parol partition, and insisting upon 
its invalidity as to him, as a judgment creditor* of 
the complainant. Proof was taken, and the allega- 
tions of the bill were established; and the Chan- 
cellor adjudged that the papl partition between 
the complainant and Norvel was valid, and that 
complainant was entitled to hold the land allotted 
to him, as a homestead, and that defendant, Jesse 
Meacham, was only entitled to subject the re- 
mainder interest therein to his judgment. 

Under that decree the injunction, modified to 
the extent of allowing the land to be sold subject 
to the homestead of complainant, was made per- 
petual. 

The defendant, Jesse Meacham, appealed to this 
Court, assigning for error the action of the Chan- 
cellor in adjudging the parol- partition good, and 
allowing complainant a homestead in the land. Of 
course, if the contention to the effect that the parol 
partition was invalid, is correct, the decree of the 
Chancellor must be reversed. This is so because 
the homestead exemption does not apply to lands 
held by the debtor in common with another or 
others. The J. I, Case Company v. Joyce, 5 Pickle, 
337. This contention of the appellant is put on 
the propositions that a parol partition contravenes 
the statute of frauds, and the registration statutes 
in force in Tennessee. 

First, — Our statute of frauds (Code, § 1758) pro- 
vides that " no agtion shall be brought upon any 



APRIL TERM, 1892. 635 



Meacham v. Meacham. 



contract for the sale of lands, tenements, or her- 
editaments, or the making of any lease thereof for 
a longer term than one year, unless the promise 
or agreement upon which such action shall be 
brought, or some memorandum or note thereof, 
shall be in writing, and signed by the party to 
be charged therewith or by some other person by 
him thereunto lawfully authorized." 

Is a parol partition within this section of our 
statute of frauds? A partition is not a sale. It 
is a separation between joint owners or tenants in 
common of their respective interests in land, and 
setting apart such interests, so that they may en- 
joy and possess the same in severalty. Partition, 
when procured by one tenant in common in invi- 
turn by judicial sentence, has never been treated as 
a sale or involving any of the elements of a sale. 

At common law, tenants in common might make 
pai'tition by parol. 17 Am. and Eng. Ency. Law, 
667. Our statute of frauds has not changed this 
rule of the common law, and, consequently, it is 
yet in vogue in Tennessee. However, if a parol par- 
tition did fall within our statute of frauds, it 
ought not to be subject to attack by a creditor of 
one of the parties thereto. A verbal sale is not 
void, but only voidable, and can only, as a general 
rule, be avoided by the grantor or grantee. 

Second, — Are the registration laws in the way of 
a parol partition as against a creditor of one of 
the tenants in common? The statute, provides that 
instruments comprehended therein, not registered. 



536 JACKSON : 



Meacham v. Meacham. 



shall be null and void as to existing, or subse- 
quent creditors of the maker. Code, § 2075. 
Section 2030 of the Code says that ^'the fol- 
lowing writings may be registered," enumerating 
them. Certainly the evidence of a transaction 
which is allowed to be done by the mere act of 
the parties, or which may rest in fais, cannot, in 
the very nature of things, be recorded or regis- 
tered. 

Conceding that a parol partition is good be- 
tween the parties thereto, it would operate unjustly 
to permit creditors of one of the parties to dis- 
turb or set aside the partition, especially creditors 
who obtained judgments after the partition. 

The decree of the Chancellor is correct, and his 
decree ' is affirmed. 



APRIL TERM, 1892. 537 



Insurance Companies v. Carrier Companies. 



* Insurance Companies y. Carrier Companies. 
{Jackson. June 7, 1892.) 

1. Removal of Causes, No separable controversy exists-^ when. 

In a suit by an insurance company against a carrier company to recover 
amount of insurance paid to a shipper on account of a loss by fire, 
for which the carrier was liable, and against which the carrier had 
protected itself by insurance in other companies (non-residents of the 
State where the suit is brought, and residents of different States or 
of a foreign government) made defendants in order to recover of them 
when the liability of the carrier was established, there is, as to the 
carrier's insurers sued, no separable controversy within the statute of 
the United States authorizing the removal of litigation from the State 
to the Federal Court. The right of complainant to sue and recover 
of the carrier's insurers is but incidental to its litigation with the 
carrier, and such a litigation against the insurers is in the nature of 
a garnishment proceeding against them, and stands on the same 
grounds, so far as the question of removal is concerned, as though 
these defendants were in fact garnishees. 

Code coijstrued: ^^4200 (M. & V.); g 3461a (T. & S.). 

Cases cited: 106 U. S., 99-108; 114 U. S., 60-62; 115 U. S., 56-61 J 
117 U. S., 280-282. 

2. Illegal Contracts. 0/ carrier as to rebates of freight charges. 

The Federal statute which forbids and declares unlawful all special 
rates, rebates, drawbacks, and preferences, is intended to make so 
much of a contract of affreightment void as related to the forbidden 
matter mentioned, but is not to be construed as making void an entire 
transaction of affreightment in which they were included, and excus- 
ing the carrier from any liability for freight received under such con- 
tract. 



FROM SHELBY. 



Appeal from Chancery Court of Shelby County. 
L. Lehman, Sp. Ch. 



* Head-note prepared by Judge Snodgrass. — Reporter. 



538 JACKSON : 



Insurance Companies 7\ Carrier Companies. 



Taylor & Carroll for Complainants. 

11. C. Warriner and Frazer & Heath for Cross- 

% 

complainants. 

John M. Butler for C. V. & C. Line. 

Holmes Cummins for N. N. & M. V. Co. 

Turley & Wright and Metcalf & Walker for 
Compress Co. and Fire Insurance Cos. 

Snodgrass, J. This suit results from the dec- 
laration of a liability (not adjudged, because the 
carrier was not before the Court) against the Cairo, 
Vincennes and Chicago Line, in the consolidated 
causes of Deming Sf Co. et al. v. The Merchants^ 
Cotton-press and Storage Co. et aL, reported in 6 
Pickle, 811. 

The opinion in these causes, and those to which 
it refers, gives in full the history of facts out of 
which the present litigation grows, and none of 
these facts need be repeated here. It is sufficient 
to say that the Court then thought, and, on prin- 
ciples there settled, declared, as it now adjudges, 
that such line was and is liable. Nothing in this 
record, or in the argument upon it, aftects the 
view there taken. 

It also then adjudged, and now repeats, that 
the Cairo, Vincennes and Chicago Line was a nec- 
essary party to relief sought, incidentally and sec- 



APRIL TERM, 1892. 539 

Insurance Companies v. Carrier Companies. 

ondarily, against other defendants then before the 
Court and now before it. 

This bill was filed on August 7, 1891, by ma- 
rine insurers against proper representatives of that 
line, who entered appearance to litigate the merits 
of the nnadjudged liability. Tlie other defendants 
are the Merchants' Cotton-press and Storage Com- 
pany and various fire and marine insurance com- 
panies. 

On the merits of the controversy, the special 
Chancellor, Lehman, reached a conclusion as to 
the liability of the Cairo, Vincennes and Chicago 
Line and on other questions, in which we concur, 
including that of the non-liability of the Newport 
News and Mississippi Valley Company as to 948 
bales of cotton; and the only question about which 
we have had any serious difficulty (in view of 
principles heretofore settled on other points) is that 
of jurisdiction, determined by the Chancellor before 
the hearing on the merits, and arises upon his 
refusal to permit the removal of the cause to the 
Federal Court upon the petition and bond of cer- 
tain fire insurance companies, presented to the 
Court October 5, 1891, and amended November 
21-23, 1891. 

We hold that the real controversy in the case 
is between the marine insurers complaining and 
those for whom thev sue, and the receivers of the 
Cairo, Vincennes & Chicago Line, defendants. 

The object of the controversy was to charge 
that line with loss sustained by shippers and paid 



540 JACKSON : 



Insurance Companies ?/. Carrier Companies. 



by these complaining companies, and incidentally 
to collect of other defendants — the fire companies — 
whatever decree might be obtained. 

These defendants, though made such to the bill, 
as formal parties, occupied substantially the position 
of garnishees, and were made defendants only that 
their indebtedness on account of insurance obliga- 
tions might be reached and held subject to such 
final decree as complainants might obtain against 
the Cairo, Vincennes and Chicago Line; and no 
separable controversy, in the sense of the statute, 
is thus presented or otherwise arises as to them 
on any proper re-arrangement of parties. Bacon v. 
Bices, 106 U. S., 99-108. 

The position that this is, in fact, a suit between 
the Merchants' Cotton-press and Storage Company 
and the fire companies — ^being *' virtually a suit by 
the former against the latter" — is not maintain- 
able; nor that the decree must, of necessity, be in 
its name against such companies, for, though the 
decree might take that form, it is not essential 
that it should do so, as it may properly recite 
facts of failure and refusal of that company — the 
nominal assured — to sue and adjudge liability di- 
rectly in favor of complainants after proper account 
stated, all parties being before the Court — the Mer- 
chants' Cotton-press and Storage Company as de- 
fendants. 

The Merchants' Cotton -press and Storage Com- 
pany, whose duty it was, as trustee, to sue for * 
and collect and appropriate to proper parties the 



APRIL TERM, 1892. 541 



Insurance Companies v. Carrier Companies. 



insurance effected by it for them, having neglected 
and refused to do so, the marine insurers had, 
therefore, the right to join it as defendant, and 
make all the fire insurance companies defendants, 
and have exact liability of each fixed and adjudged 
in complainants' favor. 

It may be true that complainants, after obtain- 
ing decree against the Cairo, Vincennes and Chi- 
cago Line, might have sued each tire insurance com- 
pany separately for its proportion of the insurance, 
to which, by virtue of such recovery, complainants 
might have been authorized to subject it; but the 
same is true in respect to appropriation of indebted- 
ness of garnishees; and yet it does not follow that, 
for such reason, such debtors may not all be pro- 
ceeded against at the same time, and with a view 
to hold such indebtedness to satisfy a prospective 
recovery under the general principles of equity and 
under our statute (M. &,V., Code §4200), nor 
change the fact that the litigation with them is 
but incidental to the main controversy. 

If complainants fail in that, no controversy re- 
mains, and no question for settlement between any 
parties to the suit. The marine insurers had no 
right of action against any of these fire companies 
except as incidental to its litigation with this 
carrier. These fire companies, in the language of 
Railroad Company v. Wilson^ 114 U. S., 60-62, 
"are made parties only in aid of the principal re- 
* lief which is asked," and "no relief whatever can 
be granted" unless a judgment is obtained against 



542 JACKSON: 



Insurance Companies v. Carrier Companies. 



the carrier, and " as to that controversy the carrier 
is an indispensable party." "The sole purpose of 
the suit" is to obtain the judgment and secure its 
collection. "The suit is therefore against both, on 
a single cause of action." 

The quotations which we have made from the 
Wilson case are not, it is true^ of a controversy 
exactly the same in fact, but we think the same 
* in principle, as are also those of Cr^mp v. Thurber^ 
115 U. S., 56-61; and Fidelity Insurance^ Trust 
and Safe Deposit Co. v. Huntington, 117 U. S., 
280-282. 

This case, too, like the last one cited, is pecu- 
liarly one in which all the fire companies, with the 
defaulting trustee, the Merchants' Cotton-press and 
Storage Company, should have been joined. There 
was no separate insurance on particular cotton, or 
in favor of a particular owner or carrier. 

The liability of each, defendant is the object of 
an equitable account, and the recovery of each 
complainant depends upon it. Each insurer is in 
equity indebted to each carrier in some amount, 
ancl the Merchants' Cotton-press and Storage Com- 
pany for the remainder, as decreed by the Chan- 
cellor. 

Taking this view of the question, we have not 
deemed it essential to go into a discussion of 
other reasons assigned for the non-removability of 
this cause. 

Presenting as it does a Federal question, which 
gives to the Supreme Court a revisory jurisdiction 



APRIL TEKM, 1892. 543 



Insurance Companies v. Carrier Companies. 



on this point, where our action rather than our 
opinion will come in review, we are content merely 
to state our conclusions upon the ground indicated, 
and our concurrence in decree refusing removal on 
that ground, because all advanced and all not ad- 
vanced by us will be gone over again if carried 
there, and the question determined without refer- 
ence to that upon which our decision is placed, 
and we do not deem it necessary to extend this 
opinion if no appeal is taken. 

One other point, however, on a question of Fed- 
eral law is made,, which it is proper to definitely 
state and decide. It is argued that the shipper 
and the carrier were, through their representatives, 
"engaged in an unlawful violation of the interstate 
commerce law, which forbids and declares unlawful 
all special rates, rebates, drawbacks, and prefer- 
ences." Sees. 2 and 3, p. 529, Sup. to Rev. St., 
U. S. ; Sec. 6, as amended by Act of March 2, 
1889, pp. 684, 685. And an assignment of error 
is predicated upon this fact, to relief decreed the 
insurer. This fact of special rate and allowance of 
rebate is denied, and it is matter ^f- controversy and 
conflict of evidence; and it is also insisted, in an- 
swer to this, by plaintiffs that the interstate com- 
merce law does not apply, for the reason that the 
evidence disproves any " common control " over the 
river and rail route. We are of opinion, however, 
and rest our decision upon the ground, that if it 
were assumed that the law was applicable, and 
the fact of agreement for rebate and special rate 



544 JACKSON: 



Insurance Companies v. Carrier Companies. 



proven, it would not avoid liability on the part 
of the carrier for the freight received and covered 
by insurance in the hands of the carrier's agent. 

The law makes such agreements as to rebates, 
etc., void, but does not make the contract of 
afireightment otherwise void; and we think there 
is nothing in the law or the policy of it which 
requires a construction that would excuse a carrier 
from all liability, when it made such a contract 
in connection with that for receipt and transpor- 
tation of freight. Such a construction would 
encourage rather than discourage such unlawful 
agreements for rebates. The carrier might prefer 
them to liability for the freight. Such a contract, 
as to rebate, would be void, and, of course, agreed 
freight rate in violation of law could not be en- 
forced, but we think the shipper could, neverthe- 
less, recover for loss of his freight through the 
carrier's negligence, and incidentally of carrier's 
insurers. No diflFerent construction has yet been 
put upon the interstate commerce law, so far as 
we are advised, and we decline to give it any 
other. 

Other questions made by counsel have all been 
considered. 

We think there was no objection to the ar- 
rangement by which the receivers entered their 
appearance, or to their contract for carriage or for 
insurance or of misnomer, available to defendants. 

Assignments of error not specially mentioned 
are overruled after full consultation. Wo are of 



APRIL TERM, 1892. 545 

Insurance Companies v. Carrier Companies. 

opinion there is nothing in any of them to pre- 
vent complainants recovering or change the decree 
of the Chancellor, and it is aflSrmed. 

Both parties having appealed, are taxed equally 
with costs of this Court. 

35—7 p 



546 J ACKSOX : 



91 546 
117 765 



Memphis v. Bank and Insurance Cos. 



Memphis y. U. & P. Bank. Same v, Hernando In- 
surance Co. Same v. Bluff City Insurance Co. 

(Jackson. June 7, 1892.) 

1. Taxation. Exemption clause in charier construed. 

Under charter granted prior to Constitution of 1870 to a bank or insur- 
ance company containing a provision *'that said company shall pay 
to the State an annual tax of one-half of one per cent, on each share 
of stock subscribed, which shall be in lieu of all other taxes," both 
the capital stock of the corporation and the shares of stock in the 
hands of the stockholders are exempt from all other taxes, whether 
ad valorem or privilege, imposed by State, county, or municipality. 
This decision rests atone upon the authority of Farrington v, Tennes- 
see, 95 U. S., 679, so far as it is held that both capital stock and 
shares of stock are exempt under said provision. Except for the 
controlling authority of said case, this Court would determine other- 
wise. 

Acts construed : Acts 1857-58, Ch. 166 ; Acts 1869-70, Ch. 93. 

Cases cited and followed : Farrington v. Tennessee, 95 U. S., 679; Bank 
V. Tennessee, 104 U. S., 493. 

Cited and approved or distinguished: Memphis v. Farrington, 8 Bax., 
539; Bank z'. McGowan, 6 Lea, 705; State v, Butler, 13 Lea, 406; 
State V, Butler, 86Tenn., 633; Memphis z^. Hernando Insurance Co., 
6 Bax., 527; Bank v. Memphis, 6 Bax., 415; Bank v. State, 9 Yer., 
490; Nashville v, Thomas, 5 Cold., 600; 143 U. S., 195; 117 U. S., 
136; 22 Fed. R., 80. 

2. Same. Charter exemption from taxation^ valid. 

Doctrine re-affirmed that a charter exemption from taxation, granted 
and accepted prior to Constitution of 1870, constitutes an inviolable 
contract binding upon the State, which cannot be impaired by sub- 

\ sequent legislation. » 

Constitution construed: Art. I., Sec. 20. 

Cases cited and approved: Memphis z\ Farrington, 8 Bax., 541; State 
r. Butler, 13 Lea, 408; Bank v. State, 9 Yer., 490; 4 Wheat., 519; 
95 U. S., 684. 



APRIL TERM, 1892. 547 



Memphis 7/. Bank and Insurance Cos. 



Same. Of capital stock and shnres of stock not double taxation. 

Doctrine re-affirmed that the capital stock of the corporation and its 
shares of stock in the hands of its stockholders are separate and 
distinct property interests, and separate and distinct subjects of taxa- 
tion; and that the taxation of both is not double taxation, nor the 
exemption of one necessarily an exemption of the other. 

Cases cited and approved: Street Railroad Co. v. Morrow, 87 Tenn., 
406; Bank v. Slate, 9 Yer., 490; Memphis v, Ensley, 6 Bax., 553; 
Gas-light Co. v. Nashville, 8 Lea, 406; 119 U. S., 277; 117 U. S., 
13s; 95 U. S., 687. 

Same. Rule as to cpnstruction of exemption clauses. 

Doctrine re-affirmed that exemptions from taxation are never allowed 
by the Courts except upon "the clearest grant of organic or statute 
law," or unless ** manifested by words too plain to be mistaken," or 
declared in "clear and unmistakable" language, or **be shown in- 
dubitably to exist." The existence of such exemption must be free 
from any reasonable doubt. 

Cases cited and approved: Wilson v, Gaines, 9 Bax., 551 ; Railroad v. 
Gaines, 3 Tenn. Ch., 604; 16 How., 435; 18 Wall., 226; 21 Wall., 
498; 95 U. S., 686; 117 U. S., 136;' 109 U. S., 398; 143 U. S., 195. 



FROM SHELBY. 



Appeal from Chancery Court of Shelby County. 
J. S. Galloway, Probate Judge, sitting by inter- 
change. 

P. T% Edmondson and Metcalf & Walker for 
Memphis. , 

Craft & Craft for U. & P. Bank. 



548 JACKSON : 



Memphis v. Bank and Insurance Cos. 



Morgan & McFarland for Insurance Companies. 

Caldwell, J. This is a bill by the State of 
Tennessee, on behalf of the city of Memphis, to 
recover from the Union and Planters' Bank ?48,- 

576.25 as ad valorem taxes on its capital stock for 

• 

the years 1887 to 1891, inclusive; or, in the al- 
ternative, to recover from the stockholders of the 
bank the same amount as taxes on the shares of 
stock held by them respectively during those years. 
Demurrer was sustained, and the bill dismissed. 
Complainant has appealed. 

Defendants claim complete immunity from these 
taxes, by reason of a certain provision in the 
bank's charter from the State. That provision is 
as follows: "That said company shall pay to the 
State an annual tax of one-half of one per cent; 
on each share of stock subscribed, which shall be 
in lieu of all other taxes.'^ Acts 1857-58, Ch. 
166, Sees. 10 and 12; Acts 1869, Ch. — . 

With respect to this provision, the primary 
claim of the bill, and of complainant's counsel at 
the bar, is, that the charter tax of one-half of 
one per cent, was laid on shares of stocky and that 
the words, "which shall be in lieu of all other 
taxes," relate alone to sliay^s of stock; that those 
words were used for the sole purpose of express- 
ing the legislative intent to exempt the shares of 
stock from further taxation, and not with a view 
of granting any exemption to the capital stock of 
the corporation. 



APRIL TERM, 1892. 549 

Memphis v. Bank and Insurance Cos. 

 '   ^  ^- - ^»      ^    —     - w ^  — — , , — 

t 

lu the alternative, the shares of stock are alleged 
to be liable to taxation if capital stock should be 
held to be exempt under the charter. 

The bill concedes the exemption of the one or 
the other, but denies that both are exempt. 

Demurrants assert that, by a proper construc- 
tion of the charter, both shares of stock and cap- 
ital stock .are exempt absolutely from all taxation, 
except the one-half of one per cent, expressly 
prescribed. 

The charter was granted under' the Constitution 
of 1834, when it was within the power of the 
Legislature to grant such exemption as it deemed 
best (Const. 1834, Art. XI., Sec. 7) ; hence, the exact 
measure of immunity conferred in this instance, 
and that to which defendants are entitled, is to be 
ascertained from the language employed. All that 
was given must be held to be lawful. 

The charter is a contract, by which the State 
is bound, and whose obligation may not be im- 
paired by subsequent legislation. Const. United 
States, Art. I., Sec. 10; Dartmouth College v. Wood- 
ward, 4 Wheaton, 519; 95 U. S., 684; 8 Bax., 541; 
Tennessee Const., Art. I., Sec. 20; 13 Lea, 408; 2 
Pickle, 614; 9 Yer., 490. 

Shares of stock and capital stock are separate 
and distinct property interests, and form separate 
and distinct subjects of taxation. The assessment 
or exemption of the one is not an assessment or 
exemption of the other. Assessment of both is 
not double taxation. New Orleans v. Houston^ 



550 JACKSON : 



Memphis v. Bank and Insurance Cos. 



119 U. S., 277; 117 U. S., 135; 95 U. S., 687; 
Cooley on Taxation, 231 ; Union Bank v. The State, 
9 Yer., 490; Sti^eet Railroad Co. v. Morrow, 3 Pickle, 
406; City of Memphis v. Ensley, 6 Bax., 558; Nash- 
ville Gas-light Co. v. City of Nashville, 8 Lea, 406. 

The right of taxation is inherent in the State. 
It is a prerogative essential to the perpetuity of 
the government; and he who claims an exemption 
from the common burden, must justify his claim 
by the clearest grant of organic or statute law. 

In Ohio Ins. Co. v. Debolt, 16 Howard, 485, it 
is said by Chief Justice Taney, that the right of 
taxation will not be held to have been surrendered, 

• 

"unless the intention to surrender is manifested bv 
words too plain to be mistaken." 

Brief extracts from other cases illustrate the im- 
portance and strictness of the rule: 

"If a doubt arise as to the intent of the Leg- 
islature, that doubt must be solved in favor of 
the State." The Delaware Railroad Tax, 18 Wal- 
lace, 226. 

" The Court has, however, in the most emphatic 
terms, and on every occasion, declared that the 
language in which the surrender is made must be 
clear and unmistakable." Erie Railway Co. v. Penn., 
21 Wallace, 498, 499. 

"When exemption is claimed, it must be shown 
indubitably to exist." 95 U. S., 686. 

The presumption is always "against any sur- 
render of the taxing power." 117 U. S., 186. 

See, to same effect, 9 Bax., 551 ; M. Sf C. R. 



APRIL TERM, 1892. 551 

Memphis v. Bank and Insurance Cos. 

JR. Co, V. Gains, MS., Nashville, March, 1878; 13 
Lea, 406; 109 U. S., 398; 143 U. S., 195. 

In view of the foregoing rule, we would have 
no hesitation, if the question were res Integra, in 
holding that the provision of this charter does not 
exempt capital stock and also shares of stock from 
other taxation than that named; for, to our minds, 
the words of the grant do. not indubitably mani- 
fest an intention to exempt both from further tax- 
ation. 

Proceeding upon the idea that those words re- 
lated to capital stock, and exempted it from all 
assessments, except the charter tax, this Coiirt, in 
1873, held that so much of a lot and building — 
purchased with its capital stock — as was necessarily 
used by the bank "for the convenient carrying on 
of its business," was exempt from further taxation, 
and that other portions of the lot and building, 
not so used, were subject to be assessed as other 
property. DeSoto Bank v. Memphis^ 6 Bax., 415. 

In another case the same charter provision was 
invoked by the stockholders, who asserted that it 
protected them against an ad valorem tax which had 
been laid on their shares of stock. The Chancel- 
lor held that the stockholders were so protected ; 
but, on appeal, his decree was reversed, this Court 
holding that the charter tax and exemption related 
alone to the capital stock, and left shares of stock 
subject to taxation against the stockholders. City 
of Memphis v. JFarrington, 8 Bax., 539. 

The stockholders took the case into the Su- 



552 JACKSON : 



Memphis v. Bank and Insurance Cos. 



preme Court of the United States, and there ob- 
tained a reversal of the decree of this Court and 
an affirmance of the decree of the Chancellor. 
Farrington v. Tennessee^ 95 U. S., 679. 

In the argument at the bar in the present case, 
counsel on both sides place great reliance on the 
opinion delivered in that case by the Supreme 
Court of the United States. On the one hand, it 
is contended that its language sustains the primary 
claim of the bill in this case, by limiting the 
charter tax and exemption to shares of stock 
alone; and, on the other hand, it is insisted that 
it justifies the demurrer, by holding both shares of 
stock and capital stock exempt from other taxa- 
tion than that prescribed by the charter. 

It is sufficient for us to say, at this point, that 
the only question for decision in that case was 
the effect of the particular words of the charter 
upon the rights of the stockholders. Shares of 
stock alone had been taxed, and stockholders alone 
were making the contest. The corporation was 
not before the Court. 

Mr. Justice Matthews, while on the circuit, in 
referring to that case, said : " It was held that the 
words, 4n lieu of all other taxes,' as thus used, 
meant in lieu of all other taxes that might be im- 
posed on that subject of taxation — viz., the shares 
of the capital stock — and that, accordingly, it ex- 
cluded a tax on those shares assessed upon them 
against the individual share-holder as his property." 
State of Tennessee v. Whitworth, 22 Fed. Rep., 80. 



APRIL TERM, 1892. 553 



Memphis v. Bank and Insurance Cos. 



When the latter "case reached the Supreme Court 
of the United States, Chief Justice Waite, in de- 
livering the opinion, said of the Farrington case 
that the question therein raised was whether the 
provision of the charter " exempted the shares in 
the hands of the stockholders from any further 
taxation by the State," and that "the Court, three 
Justices dissenting, held that it did, because, as 
the charter tax was laid on each share subscribed, 
the further exemption must necessarily have been 
of the shares in the hands of the holders, al- 
though the tax as imposed was payable by the 
corporation." Tennessee v. Wkitworth, 117 U. S., 
136. 

Since the decision of the Farrington case by 
the Supreme Court of the United States, this 
Court has uniformly adhered to its previous hold- 
ing, that no ad valorem tax can lawfully be laid 
on the capital stock, and, in recognition of that 
decision, has gone further, and said that shares of 
stock are likewise exempt from other taxation than 
that prescribed in the charter. Bank of Commerce 
v. McGowan, 6 Lea, 705; The State v. Butler, 13 
Lea, 406; The State v. Butler, 2 Pickle, 633. 

After citing, with approbation, the case of De- 
Soto Bank v. City of Memphis, 6 Bax., 415, and 
acknowledging the controlling authority of Far- 
rington v. Tennessee, 95 U. • S., 676, this Court, in 
its first reference to the latter case, said : " The 
provision in question will, therefore, protect the 
capital stock and the shares of the stockholders 



554 JACKSON 



Memphis v. Bank and Insurance Cos. 



from any taxation beyond that prescribed in the 
charter." Bank of Commerce v. McGowan^ 6 Lea, 
705. 

In the last named case the Bank of Commerce, 
whose charter was like that now under considera- 
tion, owned a building with three stories, but 
> used only one story in it^ banking business. It 
also owned three other parcels of real estate, pur- 
chased in satisfaction of debts due to the bank. 
The building and other three pieces of property 
were assessed for taxes. The bank paid the as- 
sessments under protest, and filed its bill to re- 
cover the money. The case came to this Court 
on demurrer; and, it was here held that so much 
of the building as was used by complainant for 
banking purposes was exempt from taxation, but 
that the residue of the building and the other 
three lots were subject to assessment like other 
property of the same kind. The bank, by writ 
of error, transferred the case to the Supreme Court 
of the United States, and there claimed, as it had 
done in the State Courts, that the entire property 
was exempt from taxation under its charter. The 
decree of this Court was affirmed. Bank v. Ten- 
nessee, 104 U. S., 493. 
. It is technically true, as contended for com- 
plainant, that the writ of error in the last case 
took up only so much i of the controversy as this 
Court had decided against the bank, and that 
therefore the Supreme Court of the tJnrted States 
cannot properly be said to have decided that even 



> APRIL TERM, 1892. 555 

Memphis v. Bank and Insurance Cos. 

a part of the bank's building was exempt under 
its charter. Nevertheless, the reasoning of the 
Court shows that such was its opinion. Indeed, 
that decision, as well as the decision of this Court, 
was based upon the idea (1) that the capital stock 
of the bank was exempt from all taxation except 
that prescribed in the charter; and (2) that, such 
being the case, a building in which part of its 
capital has been invested must be exempt so far 
as used by the bank for its legitimate corporate 
purposes, but no further. 

Considering the decisions of the Supreme Court 
of the United States in FayTington v. Tennessee^ 
95 TJ. S., 679, and in Bank v. Tennessee^ 104 U. 
S., 493, together, and giving tli^m the controlling 
weight to • which they are entitled, it cannot be 
held otherwise than that the charter tax of one- 
half of one per cent, is in lieu of all other 
taxes, whether against the bank on its capital stock 
or against owners on shares of stock. Under the 
construction there given, the charter exemption in- 
cludes both. 

As an original question, we would hold as held 
by this Court in Memphis v. Farrington, 8 Bax.,. 539, 
and charge the stockholders with an ad valorem 
tax ; but, upon authority, we hold as stated above. 

This Court has never decided, and, in the ab- 
sence of the ruling of the Supreme Court of the 
United States in Farrington v. Tennessee, 95 U. S., 
679, would not now decide that the charter gives 
the owners of shares of stock any immunity or 



556 JACKSON : 



Memphis v. Bank and Insurance Cos. 



exemption from taxation on the shares. That ques- 
tion is now adjudged alone upon the authority of 
that case. It did not arise, and was not adjudged, 
in Bank of Commerce v. McGowaUj 6 Lea, 705 ; in 
The State v. Butler, 13 Lea, 406; or in The State 
V. Batler, 2 Pickle, 633. 

Complainant seeks, in addition to what has al- 
ready been stated, to recover from the bank $1,800, 
as privilege taxes for the years 1889, 1890, and 
1891. These taxes are claimed from the corporation 
for the right of exercising its franchises — for the 
privilege of doing a banking business. Manifestly, 
the charter tax was intended to cover, this right 
or privilege. The language of the charter implies 
that, in consideration of the public good and the 
payment of the tax therein specified, the State 
will allow the corporation to exercise the franchises 
granted without further taxation. City of Memphis 
V. Hernando Ins. Co., 6 Bax., 527; Union Bank 
V. State, 9 Yer., 490. 

The case of New Orleans City, etc., v. Neto Or- 
leans, 143 U. S., 192, is not, as we understand it, 
an authority against this ruling. There the con- 
tract afforded *' no evidence of an intention " to 
exempt the corporation from license or privilege 
tax {lb., 195) ; here the intention to do so is clear 
and unmistakable. The charter tax was imposed 
primarily as a consideration for the corporate fran- 
chises and the right to exercise them. No other 
reasonable construction can be placed upon the 
words of the charter. 



APRIL TERM, 1891. 557 

Memphis v. Bank and Insurance Cos. 

The State is bound by its contract; and so, 
likewise, is the city of Memphis, which is but an 
arm or agency of the State government. This is 
true not only as to privilege taxes, but also with 
respect to the other taxes claimed in this ease. 
All subjects of taxation covered by the charter 
tax are exempt from further assessment, whether 
made in behalf of the State, county, or munici- 
pality. 

As to those subjects, the specified tax is in lieu 
of all other t^xes — State, county, and municipal. 
Such is the undoubted meaning of the contract. 
City of Memphis v. Hernando Ins. Co., 6 Bax., 527 ; 
Union Bank v. The State, 9 Yer., 490; Nashville 
V. Thomas^ 5 Cold., 600. 

The decision of this case controls the other 
cases by the same complainant against the Her- 
nando Insurance Company et aL, and against tlie 
Bluff' City Insurance Company et al., respectively, 
the bills in those cases having been filed for the 
same purposes and on the same behalf as the bill 
in this case, and the immunity clause of the char- 
ters of those companies, upon which defense is 
made, being in precisely the same words as that 
herein considered. 

Enter decrees dismissing each of the three bills. 
Confine the adjudication to points herein discussed, 
other questions not having been considered. 



558 JACKSON : 



Memphis z*. Home Insurance Co. 



Memphis v. Home Insurance Co. 
(Jackson. July 7, 1892.) 

1. Taxation. 0/ corporations. Charter provision construed. 

Capital stock, not shares of stock, is taxed under clause in charter of 
corporation providing that "there shall be a State tax of one-half of 
one per cent, upon the amount of capital paid in.*' 

Act construed: Acts 1853-54, Ch. — . 

2. Same. Same. Exemption by implication. 

And, under said charter provision, the thing taxed — to wit: the capital 
stock — is exempted by implication from all taxation, whether State, 
county, or municipal, other than the charter tax. This exemption 
does not extend to the shares of stock. 

Cases cited and approved: Union Bank v. State, 9 Yer., 490; 95 U. S., 
679. 

Cited and distinguished: 117 U. S., 136. 

3. Same. Same. Collection of tcuc ctssessed against unknmvn owners of shares 

of stock. 

Where shares of stock have been a^ssessed to "unknown owners" on 
account of the default of the corporate officers in furnishing to the 
assessor the names of share-holders, the tax thus assessed may be col- 
lected either by direct suit against the corporation, especially if it be 
a dividend-paying concern, or by suit against the corporation and its 
officers, seeking discovery of the names of its share-holders, in order 
that they may be made parties by supplemental bill. 

Acts construed: Acts 1887, Ch. 2, Sec. 10; Acts 1889, Ch. 96, Sees. 10, 
12; Acts 1891, Ch. 26, Sees. 5, 7 (Ex. Sess.). 

4. Same. Same, General rules re-affirmed. 

Doctrine re-affirmed that a charter contract for exemption from taxation 
(created prior to Constitution of' 1870) cannot be impaired by the 
State, or by counties or municipalities. 



APRIL TERM, 1892. 559 

Memphis v. Hotne Insurance Co. 

Cases cited and a{)proved : Union Bank v. Slate, 9 Yer., 490; Memphis 
V. Union and Planters' Bank, antty p. 546; Memphis v. Insurance Co., 
6 Bax., 527; Nashville v. Thomas, 5 Cold., 6cx). 

5. Same. Same. Same. 

m 

Doctrine re-affirmed that charier exemptions from taxation canno't exist 
unless expressed in language too plain to be mistaken, and are left 
free from any reasonable doubt. 

Cases cited and approved: Memphis v. Bank, aniej p, 546; Wilson v. 
Gaines, 9 Bax., 551; State v. Butler, 13 Lea, 406; 16 How., 435; 18 
Wall., 226; 21 /</., 498; 95 U. S., 686; 117 U. S., 136, 148; 109 U. 
s., 398; 143 U. S., 195. 

6. Same. Same. Same. 

Doctrine re-affirmed that the capital stock of a corporation and its 
shares of stock are distinct .subjects of taxation, the one not being 
affected by the taxation or exemption o( the other. 

Cases cited and approved: Memphis v. Bank, an/ey p. 546; Union Bank 
V. State, 9 Yer., 490; St. R'y Co. v. Morrow, 87 Tenn., 406; Mem- 
phis V. Ensley, 6 Bax., 553; Gas-light Co. v. Nashville, 8 Lea, 406; 
95 U. S., 687; 117 U. S., 135; 119 U. S., 277. 



FROM SHELBY. 



Appeal from Chancery Court of Shelby County. 
J. S. Galloway, Probate Judge, sitting by inter- 
change. 

F. T. Edmondson and Metcalf & Walker for 
Memphis. 

F. P. PosTON and Morgan & McFarland for 
Insurance Company. 



560 JACKSON : 



Memphis 7-. Home Insurance Co. 



Caldwell, J. The State filed i\\\h bill, on be- 
half of the city of Memphis, to recover from the 
Home Insurance Company and from the owners of 
its shares of stock certain ad valorem taxes alleged 
to be due on capital stock and shares of stock 
respectively. 

Defendants, by demurrer, claimed exemption by 
virtue of the charter of incorporation, which was 
set out in the bill. The demurrer was sustained 
and the bill dismissed. Complainant has appealed. 

The Home Insurance company was chartered 
March 2, 1854. By the thirtieth section of the 
charter it was provided that " there shall be a 
State tax of one-half of one per cent, upon the 
amount of capital actually paid in." 

Manifestly, this charter tax was laid upon the 
capital stock, and was by the Legislature intended 
to operate as an exemption to the corporation 
from further taxation on that stock. Though not 
expressed in so many words, the exemption results 
by necessary implication from the language em- 
ployed. 

The prescribed tax is the full pecuniary consid- 
eration to be paid by the corporation for the fran- 
chises granted by the State. Among those fran- 
chises is that of owning and using the capital 
stock for the purposes contemplated in the charter. 
To exact an additional tax upon the company's 
capital stock is to exact an additional considera- 
tion for the thing or one of the things granted 
in the first instance. That cannot lawfully be 



APRIL TERM, 1892. 561 



Memphis v. Home Insurance Co. 



done. The charter is a contract whose obligation 
the State cannot impair by tax-laws or otherwise. 
Union Bank v. The State, 9 Yer., 490; Memphis 
V. Union and Planters' Bank, ante, p. 546. 

This contract binds not only the State> but also 
the counties and municipalities, which are but 
agencies of the State government. 

The State may not lay an additional tax upon 
the capital stock of the defendant company, nor 
may the city of Memphis, for whose use this suit 
is brought. Ih,; City of Memphis v. Hernando Ins. 
Co,, 6 Bax., 527; Nashville v. Thomas, 5 Cold., 600. 

This decides but half the case, ^ however; and 
it remains to inquire whether the charter exemp- 
tion extends to shares of stock. Capital stock and 
shares of stock are different things, and form differ- 
ent subjects of taxation. A tax upon the one is 
not a tax upon the other, nor is an exemption of 
the one an exemption of the other. Before the 
law each must stand upon its own bottom. Mem- 
phis V. Union and Planters^ Bank, ante, citing 
119 U. S., 277; 117 U. S., 135; 95 U. S., 687; 
Cooley on Taxation, 231; 9 Yer, 490; 3 Pickle, 
406; 6 Bax., 553; 8 Lea, 406. 

In the case at bar, it has been seen that the 
charter tax is laid upon the capital stock, and that, 
by implication, that subject of taxation is to be 
exempted from further assessment. 

That tax is laid upon the one subject of taxa- 
tion only, and the implication of exemption arising 

therefrom can, by no fair construction, be held to 
.S6— 7 p 



562 JACKSON : 



Memphis 7'. Home Insurance Co. 



have greater scope. The implied exemption "can- 
not be broader than the express tax. Only the 
subject or subjects /jovered by the tax are included 
in the exemption. 

As thi& Court said in a recent case: "The right 
of taxation is inherent in the State. It is a pre- 
rogative essential to the perpetuity of the govern- 
ment; and he who claims an exemption from 
the common burden, must justify his claim by 
the clearest grant of organic or statute law." 
Memphis v. Union and Planters' Bank^ ante^ p. 
546. 

Every presumption is against any surrender of 
the taxing power; and if, in a given case, a 
doubt arise as to the intent of the Legislature on 
this subject, that doubt must be solved in favor 
of the State. Unless the intention to surrender 
is manifested by words too plain to be mistaken, 
the right to tax must be held still to reside in 
the State. 16 Howard, 435; 18 Wallace, 226; 21 
Wallace, 498; 95 U. S., 686; 117 U. S., 136; 76., 
148; 109 U. S., 398; 143 U. S., 195; 9 Bax., 
551; 13 Lea, 406. 

When this rule is applied to the case at bar, it 
becomes perfectly clear that shares of stock in the 
Home Insurance Company are subject to ad va- 
lorem taxation, in such manner as the State may, 
by proper statute, prescribe. The claim of exemp- 
tion is not justified by a grant in the clearest 
terms. Indeed, it is supported by no grant at all. 
The only exemption given by the charter arises by 



APRIL TERM, 1892. 563 

Memphis v. Home Insurance Co. 

implication from the thirtieth section, quoted on 
the first page of this opinion. That provision * has 
no reference to shares of stock; it does not men- 
tion them either for the purpose of taxation or 
foe the purpose of exemption. No tax is laid on 
them, and no exemption can be implied in their 
favor. Being beyond the scope of the tax pre- 
scribed by the charter, they are likewise beyond 
the immunity afforded thereby. 

The words of the charter in this case are the 
same, in legal import, as those of the charter con- 
strued in the case of the Union Bank v. The 
Siate^ 9 Yer., 4901 There they were held to ex- 
empt the capital stock from other than the char- 
ter tax, and to leave the shares of stock open to 
taxation as other non-exempt property. The ruling 
here made is in accord upon both questions. That 
case met the approval and commendation of the 
Supreme Court of the United States in Farrington 
V. Tennessee^ 95 U. S., 679, and, on the two points 
mentioned, has never been questioned by this Court. 

The decision in Tennessee v. Whitworth, 117 U. 
S., 136, is not in conflict. The distinction between 
capital stock and shares of stock, and the liability 
of both, at the same time, to taxation by the 
State, were expressly recognized in that case; and 
the shares of stock there in contest were adjudged 
not taxable, ' upon the ground alone that the words 
of the particular charter were found to mani- 
fest an unmistakable intent on the part of the 
Legislature to exempt them. No such intent ap- 



564 JACKSOX : 



Memphis z*. Home Insurance Co. 



pears, or can reasonably be claimed, in tbe present 



case.* 



The shares of stock were assessed to " unknown 
owners." That fact is explained by the allegation 
that the officers of the corporation refused, upon 
proper application, to furnish a list of the stock- 
holders to the assessor; and the secretary of the 
company, who is alleged to be the custodian of 
its books, is brought before the Court, that a dis- 
covery may be had and the stockholders thereafter 
made parties by supplemental pleading. Though 
the statute does not require that the officers of a 
stock company shall furnish a li-t of stockholders 
in the sense of making it out and sending it to 
the tax-assessor, it ' does make it the duty of the 
officers of the corporation to keep such a list al- 
ways on hand, and subject to the free inspection 
of the assessor. Acts 1887, Ch. 2, Sec. 10; Acts 
1889, Ch. 96, Sec. 10; Acts Extra Session 1891, 
Ch. 26, Sec. 5. 

The allegation ie, in effect, that the defendant 
company failed to perform that duty, and thereby 
withheld the information necessary to an assessment 
of the shares to the owners by name. 

Discovery is a proper remedy in such a case; 
yet the complainant might as appropriately and 
more speedily collect its revenues by proceeding 
directly against the corporation for a sufficiency of 
the dividends which the law (Acts 1887, Ch. 2, 
Sec. 10, and Acts 1889, Ch. 96, Sec. 12; Acts 
Extra Session 1891, Ch. 26, Sec. 7) requires it to 



APRIL TERM, 1892. 565 

Memphis v. Home Insurance Co. 

retain for the payment of taxes on the shares. 
Especially would such a practice be more speedy 
than the remedy by discovery, If the corporation 
be a dividend-paying concern. 
Reverse and remand. 



566 JACKSON : 



L?J 666 



Memphis v. Phoenix, etc., Insurance Co. 



Memphis v. Phoenix, etc., Insurance Co. 



{Jackson. July 7, 1892.) 



I. Taxation. Charter exemption exists ^ wfun, 

A corporation that is clothed by the terms of its charter *'with all the 
powers, prijnleges, a«</ IMMUNITIES'* of an older existing corporation, 
is invested with a valid exemption from taxation contained in the 
charter of the older corporation. 

Act construed: Acts 1858, Ch. 166, Seel 12. 



2. Same. Charter exemption does not exists when. 

But a corporation clothed by the terms of its charter **with all the 
rights and privileges'^ of an older existing corporation, without more, 
is not invested with an exemption from taxation contained in the 
charter of the older corporation. 

Act construed: Acts 1866-67, Ch. 71, Sec. i. 

Cases cited and approved: Wilson v. Gaines, 9 Bax., 546; Railroad v, 
Hamblen County, MS., Knoxville, September term, 1877; Railroad 
V. Gaines, MS., March, 1878; 97 U. S., 697; 102 U. S., 273; 103 U. 
S., 417; 93 U. S., 217; 130 U. S , 642. 

Cited and distinguished: Railroad v. Hicks, 9 Bax., 442 j State v. Rail- 
road, 12 Lea, 538; 117 U. S., 146. 



3. Same. Method of collection of taxes assessed upon shares of stock of corpo- 
ration. 

Collection of taxes assessed against the shares of stock of a corporation, 
where the share-holders are unknown, may be enforced by direct suit 
against the corporation for the tax, if it be a dividend-paying con- 
cern, or by bill against the corporation and its officers for discovery 



APRIL TERM, 1892. 567 

Memphis ?/. Phoenix, etc., Insurance Co. 

of the names of the share-holde'rs, in order that they may be brought 
before the Court by supplemental bill for recovery of tax of them. 

Case cited and approved: Memphis v. Home Ins. Co., ante, p. 558. 



FROM SHELBY. 



Appeal from Chancery Court of Shelby County. 
J. S. Galloway, Probate Judge, sitting by inter- 
change. 

m 

Mbtcalf & Walker and F. T. Edmondson for 
Memphis. 

U. W. Miller for Insurance Company. 

Caldwell, J. On March 11, 1867, the Wash- 
ington Fire and Marine Insurance Company, of 
Memphis, Tennessee, was chartered by the State, 
"with all the riglits and prioileges of the DeSoto 
Insurance and Trust Company." Acts 1866-67, 
Ch. 71, Sec. 1. The latter company had pre- 
viously been chartered *' with all the powers^ privi- 
leges^ and immunities" of the BluflF City Insurance 
Company. Acts 1858, Ch. 166, Sec. 12. By the 
tenth section of the charter of the Bluff' City In- 
surance Company it was provided, " that said 
company shall pay to the State an annual tax of 
one-half of one per cent, on each share of the 



568 JACKSON: 



Memphis v. Phoenix, etc.. Insurance Co. 



capital stock subscribed, which shaH be in lieu of 
all other taxes." Acts 1858, Ch. 166, Sec. 10. 

On March 28, 1881, the name of the Washing- 
ton Fire and Marine Insurance Company was, by 
legislative enactment, changed to the "Phoenix Fire 
and Marine Insurance Company, of Memphis, Ten- 
nessee." Acts 1881, Ch. 28, Sec. 1. 

This bill was filed by the State, on behalf of 
the city of Memphis, against the last-named com- 
pany and its secretary, to recover certain ad valorem 
taxes alleged to be due on capital stock, or, in 
the alternative, on shares of stock. 

Defendants, by demurrer, claimed immunity from 
all assessments, except one-half of one per cent, 
on each share of capital stock subscribed, which 
the bill concedes has been paid to the State. 

The Chancellor sustained the demurrer and dis- 
missed the bill. Complainant appealed. 

The controlling question for our decision is this: 
Did the Washington Fire and Marine Insurance 
Company — in whose shoes the Phoenix Fire and 
Marine Insurance Company now' rightfully stands — 
acquire, by its charter from the State, the same 
immunity granted to the BluflF City Insurance 
Company by the tenth section of its charter, here- 
inbefore set out? 

If it did, the decree of dismissal must be 
affirmed, for reasons stated in the recent case of 
Memphis v. Union and Planters' Bank^ ante, p. 
546; if not, then the decree must be reversed 
and the bill entertained. 



APRIL TERM, 1892. 569 



Memphis v. Phoenix, eic, Insurance Co. 



Confessedly, the DeSoto Insurance and Trust 
Company was granted that immunity, for, by the 
express words of its charter, it was given " all the 
powers, privrleges, and immunities'^ of the Bluff 
City Insurance Company. But the Washington 
Fire and Marine Insui^nce Company (which now 
exists by legislative sanction under the name of 
Phoenix Fire and Marine Insurance Company) re- 
ceived by its charter only "the rights and privi- 
leges" of the DeSoto Insurance and Trust Com- 
pany. 

Did the last-named words, " rights and privi- 
leges," carry the tenth section of the Bluff City 
Insurance Company's charter into the charter of 
the Washington Fire and Marine Insurance Com- 
pany, and thereby give it immunity from all tax- 
ation, except that therein prescribed? Clearly it 
did not. Such, in our opinion, was not the legis- 
lative intent. In the absence of an intent to that 

« 

effect, unmistakably manifested by the terms of the 
grant, the immunity must be held not to have 
been conferred. No presumption is to be indulged 
in its favor. 

The Constitution of 1834, under which all of 
the foregoing charters were granted, used in the 
same connection, one after the other, in the same 
clause, all the words, "rights," "privileges," "im- 
munities," and "exemptions," as follows: 

"The Legislature shall have no power to suspend 
any general law for the benefit of any particular 
individual, nor to pass any law for the benefit of 



570 JACKSON : 



Memphis v. Phoenix, etc., Insurance Co. 



individuals, inconsistent with the general laws of 
the land; nor to pass any law granting to any 
individual or individuals, rights, privileges, immu- 
nities, or exemptions, other than such as may be, 
by the same law, extended to any member of the 
community who may be able to bring himself 
within the provisions of such law; Provided always^ 
The Legislature shall have power to grant such 
charters of incorporation as they may deem ex- 
pedient for the public good." Constitution of 1834, 
Art. XI., Sec. 7. 

Properly, the language of these charters should 
be interpreted in the light of that provision of the 
organic law in which each word has its own office 
to fill, and no one that of another. 

When the Legislature said the DeSoto Insurance 
and Trust Company should enjoy "all the powers, 
privileges, and immunities'^ of the Bluft* City Insur- 
ance Company, more was meant than when it 
afterwards said that the Washington Fire and Ma- 
rine Insurance Company should have "all the rights 
and privileges" of the DeSoto Insurance and Trust 
Company. The words used in the former case, of 
necessity, have greater scope and fullness of mean- 
ing than those used in the latter case. It cannot, 
with any satisfactory process of reasoning or defi- 
nition, be contended that the measure of the State's 
grant was the same in each instance. There is a 
marked difference, and that difference lies, mainly, 
in the word immunities, whose use in the one 
case, admittedly, includes the limited tax prescribed 



APRIL TERM, 1892. 571 

Memphis v. Phoenix, etc., Insurance Co. 

I 

in the charter of the Bluff City Insurance Com- 
pany, and whose omission in the other case as 
naturally excludes it. 

The words "rights and privileges," as employed 
in the charter before us, do not embrace immunity 
from taxation in any degree. 

The cases of Bailroad Co. v. Hicks, 9 Bax., 442, 
and The State v. iV., C. ^ St. L. By., 12 Lea, 538, 
are not necessarily in conflict with this ruling, for, 
in each of those cases, the purchaser was held to 
have the immunity of the original corporation, 
upon the ground that the statute authorizing the 
sale, and the decree directing it, provided that "all 
the rights, privileges, and immunities^* of such cor- 
poration should be transferred to, and vested in, 
the purchaser. 

The other cases of the JS. T., Va. ^ Oa. R. R. 
Co. V. Hamblen County, MS., Knoxville, September, 
1877, and Wilsoji v. Gaines, 9 Bax., 546, are in 
accord with the ruling made herein. Each of these 
latter cases went into the Supreme Court of the 
United States on writ of error, and the judgments 
of this Court were there affirmed. Railroad Co. 
V. Hamblen County, 102 U. 8., 273; Wilson v. 
Gaines, 103 U. S., 417. 

In still other cases has this Court held that 
the words " rights and privileges," do not embrace 
immunity from * taxation. Memphis and Charleston 
R. R. Co. et al. v. James L. Gaines, Comptroller, et 
al., MS., March, 1878, and citations therein. 

The last named case was also affirmed in the 



572 JACKSON : 



Memphis v. Phoenix, etc., Insurance Co. 



Supreme Court of the United States. Railroad 
Companies v. Gaines^ 97 U. S., 697. 

The opinion of Mr. Justice Field, in Morgan v. 
Louisiana^ 98 U. S., 217, was aptly cited as author- 
ity for the main proposition in Wilson v. GaineSy 
9 Bax., 552, and also in Memphis and Charleston 
R. R, Co. et al. v. James L, Gaines^ Comptrollerj et 
al.y MS. 

A diflferent ruling seems to have been made in 
Tennessee v. Whitworth, 117 U. S., 146, wherein the 
reasoning adopted by this Court in Wilson v. 
Gaines, 9 Bax., 546, was disapproved. But as 
late as 1889, the question here under considera- 
tion came again before the Supreme Court of the 
United States, in a case originating in this State, 
and involving the construction of a Tennessee char- 
ter, and in that case, Mr. Justice Field, speaking 
for a unanimous Court, among other things, said: 
"It is true, there are some cases where the term 
* privileges' has been held to include immunity 
from taxation, but that has generally been where 
other provisions of the Act have given such mean- 
ing to it. The later, and, we think, the better 
opinion is, that unless other provisions remove all 
doubt of the intention of the Legislature to in- 
clude the immunity in the term * privileges,' it 
will not be so construed. It can have its full 
force by confining it to other grants to the corpo- 
ration." Pickard v. E, T,, Va. ^ Ga, R. JR. Co., 
130 U. S., 642, citing and approving, on this 
proposition. Railroad Co. v. Hamblen County, 102 



APRIL TERM, 1892. 573 



Memphis v. Phcenix, etc., Insurance Co. 



U. S., 273, and Morgan v. Louisiana, 93 U. 8., 
217, 223. 

Without referring to other authorities, we hold, 
upon what seems to us the clear weight of reason 
and judicial decision, that the Washington Fire 
and Marine Insurance Company did not, by its 
charter, acquire any of the immunities of the De- 
Soto Insurance and Trust Company, and that its 
successor, the Phoenix Fire and Marine Insurance 
Company, and the owners of its shares of stock, 
are subject to taxation in the same manner as 
other like corporations and stockholders having no 
exemption. 

The facts stated in the bill do not make a case 
of res adjudicata. 

Complainant, upon the allegation of the bill, is 
entitled to a discovery of the names and residences 
of the stockholders, or, by proper amendment, to 
proceed against the corporation directly, for the 
purpose of appropriating dividends to payment of 
all proper assessments against shares of stock. 
State of Tennessee, for the use, etc., v. Home Insur- 
ance Co. et al., ante, p. 558. 

Reverse and remand. 



574 JACKSON : 



Memphis v, Memphis City Hank. 



Memphis v. Memphis City Bank. 
{Jackson. July 7j 1892.) 

I. Taxation. Legislative pmver to exempt from taxation wanting under 
Constittitioft of j8yo. 

The Legislature has not power, under the Constitution of 1870, to pass 
any law, general or special, original or amendatory, to confer upon 
corporations or individuals, or classes thereof, any exemptions from 
taxation, other than such as are expressly peimitted by said Consti- 
tution, either by creating a new and original exemption for their ben- 
efit, or by extending and preserving the life of an existing lawful ex- 
emption under conditions and fur purposes not contemplated in its 
creation. This result is reached by construction of the clauses of the 
Constitution of 1870 relating to taxation and to the creation of cor- 
porations. The rule was otherwise under the Constitution of 1834, 
its corresponding clauses being materially different. (Post, pp. S^J- 

Constitution construed: Art. II., Sec. 28, Art. XI., Sec. 7 (1834); Art. 
II., Sec. 28, Art. XI., Sec. 8 (1870). 

Cases cited and approved: Railroad z\ Wilson County, 89 Tenn., 608; 
Ellis 7^ Railroad, 8 Bax., 530; Chattanooga?/. Railroad, 7 Lea, 576; 
Railroad v. State, 8 Heis., 789; Franklin County z/. Railroad, 12 Lea, 
547; Railroad v. Gaines, 3 Tenn. Ch., 611 ; 141 La. Ann., 188. 

Cases cited and distinguished: Stale v, Butler, 13 Lea, 406; State v. 
Butler, 86 Tenn., 620; 97 U. S.,'I47. 

2.. Same. Same, 

The conceded authority of the Legislature, under the Constitution of 
1870, to increase the "powers" of existing corporations by general 
laws, does not include author!^ to confer upon such corporations an 
immunity from taxation. *' Powers" does not include immunity from 
taxation. [Post, pp. ^8g, 590.) 

Constitution construed: Art. XL, Sec. 8. 

Cases cited and approved: Memphis v. Insurance Co., ante, p. 566; 
Wilson V, Gaines, 9 Bax., 546; Railroad v. Hamblen County, MS., 



APRIL TERM, 1892. 575 

» 

Memphis v, Memphis City Bank. 

Knoxville, 1877; Railroad z/. Gaines, MS., Nashville, 1878; 102 U. 
S., 273; 103 U. S., 417; 97 U. S., 697; 93 U.S., 217; 130 U.S., 642. 

3. Same. Construction of chaiier prainsion exempting from taxation. 

The shares of slock m a corporation are not liable for the tax imposed, 
nor protected by the immunity from taxation granted, by a clause in 
its charter providing "that there shall be levied a State lax of one- 
half of one per cent, upon the amount of capital stock actually paid 
in, to be collected in the same way and at the same time as other 
taxes are by law collected, which shall be in lieu of all other taxes." 
{Post, pp, 577-S79' ) 

4. Same. Same, 

But the capital stock of the corporation alone is subject to the tax im- 
posed and protected by the exemption granted by said provision. 
And the effect of said provision, if valid, is to protect the capital 
stock from all taxes, except that imposed by the charter, whether 
State, county, or municipal. (Post, pp. 377-579") 

Cases cited and approved: Union Bank v. State, 9 Yer., 490; Memphis 
V. Insurance Co., ante, p. 558. 

5. Same. Exemption from taxhtion not transmissible, 

•An insurance company was chartered prior to 1870. It possessed ex- 
emption from taxation. After the Constitution of 1870 went into 
effect, this insurance company was converted into a banking corpo- 
ration by«legislative permission. The legislation effecting this change 
not only changed the name of the old corporation, and invested it 
with new powers, but provided that the new corporation should enjoy 
**any franchise, right, power, privilege, or immunity" possessed by 
the former corporatidn. 

Held: The immunity from taxation did not pass. The power to trans- 
fer this immunity is equivalent to the power to create it, and both are 
prohibited under Constitution of 1870. {Post, pp. 380-3^2,) 

Act construed: Acts 1887, Ch. 190. 

Cases cited and approved: Bank v. Memphis, 6 Bax., 415; Bank z^. 
McGowan, 6 Lea, 705; 104 U. S., 493. 

6. Corporations. Construction of charter of insurance company. 

An insurance company, chartered, organized, and operated as such, has 
not banking powers authorizing it to conduct the business of a bank, 
although its charter provides ''that said corporation shall be capable 
in law * * * of receiving in trust, from any person, money, 
jewels, plate, or other valuable thing." (Post, pp. jgj, S94') 



676 JACKSON: 



Mem|>his v. Memphis Ciiy Bank. 



7. Same. Capital stock and shares of stock are separate properties. 

The capital stock of a corporation and its shares of stock are distinct 
taxable properties. The taxation or exemption of one is not taxation 
or exemption of the other. {Post^ p. sy8,) 

Cases cited and approved: Memphis v. Bank, ante, p. 546; Memphis?'. 
Insurance Co., ante, p. 558; Wilson v, Gaines, 9 Bax., 551 ; Gas-light 
Co. V. Nashville, 8 Lea, 406; Union Bank v. State, 9 Yer., 490; 
Street Railroad Co. r. Morrow, 87 Tenn., 406; 95 U. S., 687; 117 
U. S., 135; 119 U. S., 277. 

S. Constitutional Law. Rule of construction. 

In construction of the Constitution every clause should be given effect. 
The language of one clause should not be pressed so far as to annul 
another clause. ( Post, p. jS6. ) 

Cases cited and approved: McKinney v. Hotel Co., 12 Heis., 116; 
Memphis v. Water Co., 5 Heis., 495. 

9. Same. Charter exemptions are inviolable contracts. 

Charter exemptions from taxation granted prior to 1870 constitute con- 
tracts that the Slate cannot impair by legislation or otherwise. {Post, 

Cases cited and approved: Memphis z'. Bank, ante, p. 546; Memphis r/. 
Insurance Co., ante, p. 558; Memphis zf. Insurance Co., 6 Bax., 527; 
Nashville 7\ Thomas, 5 Cold., 600. 

10. Same. Same. Construction of cJiarter exemptions. 

Charter exemptions from taxation are never allowed unless expressed 
in language so plain and unmistakable as to leave no reasonable 
doubt of the legislative intent to create them. {Post, pp. ^yg, ^80.) 

Cases cited and approved: Memphis v. Bank, ante, p. 546; Memphis z'. 
Insurance Co., ante, p. 558; Wilson r. Gaines, 9 Bax., 551 ; State Z'. 
Butler, 13 Lea, 406; 16 How., 435; 18 Wall., 498; 95 U. S., 686; 
117 U. S., 136, 148; 109 U. S., 398; 143 U. S., 195. 



FROM SHELBY. 



Appeal from Chancery Court of Shelby County. 
J. S. Galloway, Probate Judge, sitting by inter- 
change. 



APRIL TERM, 1892. 577 



Memphis z/. Memphis City Bank. 



F. T. Edmondson and Metcalf & Walker for 
Memphis. 

Fraysbr & Scruggs and Taylor & Carroll for 
Bank. 

ft 

Caldwell, J. The State brought this bill, on 
behalf of the city of Memphis, to recover from the 
Memphis City Bank and from its stockholders, re- 
spectively, certain ad valorem, taxes alleged to be 
due on capital stock and on shares of stock. 

The bill was dismissed on demurrer, and com- 
plainant appealed. 

The main defense is made upon the seventeenth 
section of the charter of the Memphis City Fire 
and* General Insurance Company, of which defend- 
ants claim the full benefit, and by which they 
contend that both capital stock and shares of stock 
are exempt from all taxation, except that prescribed 
therein. 

The language of that provision, so far as material 
to this contention, is as follows: "-6e it further 
enacted, That there shall be levied a State tax of 
one-half of one per cent, upon the amount of 
capital stock actually paid in, to be collected in 
the same way and at the same time as other 
taxes are by law collected, which shall be in lieu 
of all other taxes and assessments." 

The tax here prescribed is the pecuniary con- 
sideration to be paid by the corporation to the 

State for the franchises granted. It is expressly 
37-7 p 



578 JACKSON : 



Memphis v. Memphis City Bank. 



laid upon the capital stock, and is intended, obvi- 
ously, to "be in lieu of all other taxes and assess- 
ments" on that subject of taxation. No additional 
tax can lawfully be laid upon capital stock, whether 
in favor of State, county, or municipality. The 
charter is binding not only upon, the State, but 
also upon county and municipality, which are but 
agencies of the State in administering the affairs 
of government; it is a contract whose obligation 
may not be violated by subsequent revenue laws or 
otherwise. Union Bank v. The State, 9 Yer., 490; 
Memphis v. Union and Planters* Bank, ante, p. 546; 
Memphis v. Home Insurance Company, ante, [>. 558; 
City of Memphis v. Hernando Insurance Company, 
6 Bax., 527; Nashville v. Thomas, 5 Cold., 600. 

Whether the shares of stock are, by this chafter, 
exempt from ad valorem taxation is a totally differ- 
ent question ; for capital stock and shares of stock 
are distinct subjects of taxation. The assessment or 
exemption of the one is not the assessment or ex- 
emption of the other. Memphis v. Union and 
Planters' Bank, ante, p. 546; Memphis v. Home 
Insurance Company, ante, p. 558; 9 Yer., 490; 6 
Bax., 553; 8 Lea, 406; 3 Pickle, 406; 95 U. S., 
687; 117 U. S., 135; 119 U. S,, 277; Cooley on 
Taxation, 231. 

The charter tax of "one-half of one per cent, 
upon the amount of capital stock actually paid in" 
is, therefore, not a tax upon shares of stock; nor 
is the exemption of capital stock from further tax- 
ation an exemption of shares of stock. 



APRIL TERM, 1892. 579 



Memphis v. Memphis City Bank. 



That the charter tax is laid exclusively upon 
capital stock is too manifest to admit of debate, 
and, to our minds, it is equally clear that the 
words, "which shall be in lieu of all other taxes 
and assessments," refer alone to the same subject 
af taxation. But the one subject of taxation is 
mentioned. Hence, it would be illogical to give 
the exemption greater scope. The exemption con- 
templated followed in the legislative mind as a 
proper result from the tax imposed. The property 
protected from further burden is that upon which 
the specific burden is already imposed. The shares 
of stock are not liable for the charter tax; they 
are not embraced in the charter exemption; they 
are subject to taxation as other non-exempt property 
of the same kind. 

If the taxability of shares of stock were left in 
doubt by the words of the charter, the doubt 
should be resolved in favor of the State. He 
who claims exemption from the common burden of 
taxation, must justify his claim by the clearest 
grant from the State. Every presumption is against 
any surrender of the taxing power, and the State 
must be held to have the power of assessing all 
property, taxable under the Constitution, unless by 
authorized grant, in words too plain to be mis- 
taken^ an intention to surrender that power 
is manifested. Memphis v. Union and Planters^ 
Bank, ante, p. 546; Memphis v. Home Insurance 
Company, ante, p. 558; 9 Bax., 551; 13 Lea, 406; 
16 Howard, 435; 18 Wallace, 498; 95 U. S., 686; 



580 JACKSOX : 



Memphis f. Memphis City Bank. 



117 U. S., 136; lb., 148; 109 U. S., 398; 143 U. 
S. 195. 

The language of the charters considered in Union 
Bank v. The State, 9 Yer., 460, and in Memphis v. 
Home Insurance Company, ante, p. 558, is, in legal 
effect, the same as that here involved, and in each 
of those cases it was decided that capital stock 
was exempt from further taxation, but that the 
shares of stock were subject to assessment as other 
non- exempt property of the same kind. 

The only difference worthy of mention here, 
lies in the fact that the words, "which shall be 
in lieu of all other taxes and assessments," appear- 
ing in this charter, are not found in the charters 
construed in those cases, and that difference is un- 
important, being one of language merely and not 
of legal import. In those cases exemption of cap- 
ital stock from all other taxation arose by neces- 
sary implication from the fact that the Legislature, 
in the charter, laid a prescribed tax upon that 
subject of taxation; while in this case the ex- 
emption, there implied, is expressed by the words, 
"which shall be in lieu of all other taxes and 
assessments.'' There the exemption followed as a 
legal result; here the same legal result is expressed 
in 80 . many words, without adding any thing to 
the legal import of the charter. 

Thus far this opinion has proceeded upon the 
assumption that defendants are entitled to the full 
benefit of the seventeenth section of the charter 
of the Memphis City Fire and General Insurance 



APRIL TERM, 1892. 581 

Memphis v. Memphis City Bank. 

Compauy, as they claim to be. Whether they are 
in reality so entitled remains to be considered. 

That company was chartered January 24, 1870. 
By the twelfth section of the charter it is pro- 
vided "that the said corporation shall be capable 
in law * * * of receiving in trust, from 
any person, money, jewels, plate, or other valuable 
thing." 

On March 26, 1887, the Legislature passed "An 
Act to define the powers of corporations," as fol- 
lows : 

" Section 1. Be it enacted by the General Assem- 
bly of the State of Tennessee, First, that any com- 
pany incorporated under the laws of this State, 
having, by its charter, the right to receive moneys in 
trust or otherwise, shall be held to have, and shall 
have, the power, after the passage of this Act, to 
receive deposits, and loan the same and its capi- 
tal • on any kind of commercial or business paper 
or real estate, buy and sell exchange, and all kinds 
of public or private securities and commercial pa- 
per. Second, that the exercise of any of the fore- 
going powers by any corporation created or incor- 
porated or chartered under the laws of this State, 
shall not operate to forfeit or aifect any franchise, 
right, power, privilege, or immunity granted to 
such corporation in and by its charter." Acts 
1887, Ch. 190, Sec. 1. 

On January 22, 1889, another Act was passed, 
by the first section of which the name of the 
"Memphis City Fire and General Insurance Com- 



582 JACKSON : 



Memphis ?/. Memphis City Bapk. 



pany" was changed to *' Memphis City Bank;'' 
and by the second section of which it was enacted 
"that such change of name, as provided for in 
the first section of this Act, shall not operate to 
forfeit, affect, or abridge any franchise, right, power, 
privilege, or immunity granted to said corporation 
by its original charter." 

Complainant alleges, and defendants by their 
demurrer admit, that the Memphis City Fire and 
General Insurance Company was organized under 
its charter, and was engaged in a general insur- 
ance business until the passage of the foregoing 
Act, by which its name was changed ; and that 
thereafter it abandoned the business of insurance, 
and employed its capital in a general banking 
business, in which it is still engaged. 

Upon these facts the question arises whether or 
not the Memphis City Bank is entitled to any 
immunity from taxation by virtue of the seven- 
teeAth section of the original charter hereinbefore 
construed. 

In the absence of the Acts of 1887 and 1889, 
it is clear that no such immunity would exist; 
for, by the diversion of the capital stock from the 
business of insurance, and its employment in a 
banking business, it would cease to be within the 
protection of the original charter. DeSoto Bank 
V. Memphis, 6 Bax., 415 ; Bank of Commerce v. 
McGowan, 6 Lea, 705; Bank v. Tennessee, 104 U. 
S., 493. 

Then, what is the legal eft'ect of those Acts? 



APRIL TERM, 1892. 583 



Memphis v. Memphis City Bank. 



A mere change of name, without a change of 
business, would make no difference whatever in the 
matter of taxation and exemption. 97 U. S., 147; 
2 Pickle, 615. A change of business and transfer 
of corporate rights, privileges, and immunities, by 
legislative authority, has, several times by this 
Court, been held to carry with it the same immu- 
nity from taxation enjoyed in the original busi- 
ness. State V. Butler y 13 Lea, 406 ; State v. Butler , 
2 Pickle, 620. 

But those decisions were made with respect to 
changes accomplished under legislation prior to the 
Constitution of 1870. This leads to a comparative 
consideration of corresponding provisions of the 
Constitutions of 1834 and 1870. If such changes 
might be made, and the immunity preserved to 
the corporation in its new business under the 
former Constitution, as has been seen, may the 
same thing be done under the latter? 

In answering this inquiry, it must be kept in 
mind that the State Legislature is omnipotent in 
matters of legislation, except as to subjects with 
respect to which its powers are restricted by the 
organic law. 

Section 7, Art. XL, Constitution of 1834, is as 
follows : 

'" The Legislature . shall have no power to sus- 
pend any general law for the benefit of any partic- 
ular individual, nor to pass any law for the benefit of 
individuals, inconsistent with the general laws of the 
land; nor to pass any law granting to any individual 



584 JACKSON : 



Memphis ?'. Memphis City Bank. 



I 

or individuals rights, privileges, immunities, or ex- 
emptions other than such as may be, by the same 
law, extended to any member of the community 
who may be able to bring himself within the pro- 
visions of such law; Provided always^ The Legis- 
lature shall have power to grant such charters of 
incorporation as they may deem expedient for the 
pablic good." 

It is perfectly clear that, if the negative por- 
tion of this section stood alone, the Legislature 
would have had no power to grant private char- 
ters of incorporation, with or without immunities 
or exemptions. But the inhibition of that portion 
of the section was so far removed by the proviso 
as to authorize the grant of such charters as the 
Legislature might deem expedient for the public 
good. By virtue of the proviso, it became com- 
petent for the Legislature to charter insurance com- 
panies, banks, etc., with such rights, privileges, 
immunities, or exemptions as it might deem expe- 
dient for the public good, and as might, not be 
in conflict with other positive provisions of the 
Constitution ; and, having power to grant imrau-. 
iiity from taxation to an insurance company or to 
a bank, one or both, it follows that it had power 
to authorize incorporators engaged in the one busi- 
ness to abandon it and embark the same capital 
in the other business with the same immunity. 
Having power to create both, it was able to 
transform one into the other. 

This interpretation justifies the decisions referred 



APRIL TERM, 1892. 585 

Memphis v. Memphiis City Bank. 

to, and, at the same time, makes no conflict with 
the revenue clause of the same Constitution. That 
clause is in these words: "All lands liable to tax- 
ation, held by deed, grant, or entry, town lots, 
l^ank stock, * * * ^nd such other property 
as the Legislature may from time 'to time deem 
expedient, shall be taxable. All property shall be 
taxed according to its value; that value to be as- 
certained in such manner as the Legislature shall 
direct, so that the same shall be equal and uni- 
form throughout the State. No one species of 
property from which a tax may be collected, shall 
be taxed higher than any other species of property 
of eqiial value." Const. 1884, Art. II., Sec. 28. 

In this language can be found no imperative re- 
quirement that all property shall be taxed. Under 
it the Legislature might tax or omit to tax. The 
direction is, that certain property named in the 
first sentence, and such other property as the Leg- 
islature may deem expedient, " shall be , taxable^ 
The matter of taxation, not only as to the amount 
to be levied, but as to the property upon which to 
be levied, was left largely to the legislative discre- 
tion. Therefore, this provision was not violated by 
grants of immunity from taxation under the other 
provision. This construction is sustained by the 
reasoning of the Court in Railroad Co, v. Hicks^ 
9 Bax., 442. 

Let us next consider the corresponding provis- 
ions of the Constitution of 1870. Section 8 of Art. 
XL of that instrument is the same exactly as 



586 • JACKSON : 



Memphis v, Memphis Cily Bank. 



Sec. 7 of Art. XI. of the Constitution of 1834 
down to the proviso in the latter, and instead of 
that proviso, the Constitution of 1870 has the follow- 
ing sentence : " No corporation shall be created, or 
its powers increased or diminished by special law^ 
but the General Assembly shall provide by general 
laws for the organization of all corporations here- 
after created, which laws may, at any time, be 
altered or repealed ; and no such alteration or re- 
peal shall interfere with or divest rights which 
have become vested." 

There is some plausibility in the suggestion thjit 
this substituted language was intended to authorize 
the Legislature to do, by general law, what it 
could do before by special law; but this concession 
is made only in connection with the qualifying 
statement that, in both cases, the legislative discre- 
tion is subordinate to other positive provisions of 
the organic law, and that in neither could it be 
made effective, if exercised in conflict therewith. 

Though the Legislature was empowered by the 
proviso of the seventh section of Art. XL of the 
Constitution of 1834, to grant such charters of in- 
corporation, by special laws, as it deemed expedient 
for the public good, it could not, under that au- 
thority, grant corporate " rights expressly forbidden 
by any other clause" of the same Constitution. 
McKinney v. Hotel Co,, 12 Heis., 116; Memphis v. 
Memphis Water Co,, 5 Heis., 495. 

So it is, also, with reference to the Constitution 
of 1870. The whole instrument must be taken into 



APRIL TERM, 1892. 587 



Memphis v. Memphis City Bank. 



consideration, and no part so construed as to im- 
pair or destroy any other part. Legislative powers 
enumerated in one clause must be defined and 
exercised with reference to limitations and require- 
i^ents made in other clauses. 

With this fundamental rule of construction in 
view, and placing Sec. 8 of Art. XI. and Sec. 28 
of Art. II., of the Constitution of 1870, in jux- 
taposition, the conclusion becomes irresistible that 
the framers of that instrument intended that the 
Legislature should not, thenceforth, have power to 
grant immunity from taxation, by general law or 
otherwise, to any new corporation, or to preserve 
an existing immunity to any old corporation in its 
change from one business to another fundamentally 
different. That power was taken away absolutely. 

The latter section is as follows: "All property, 
real, personal, or mixed, shall be taxed; but the 
Legislature may except such as may be held by 
the State, by counties, cities, or towns, and used 
exclusively for public or corporation purposes, and 
such as may be held and used for purposes purely 
religious, charitable, scientific, literary, or educa- 
tional; and shall except one thousand dollars' worth 
of personal property in the hands of each tax- 
payer, and the direct product of the soil in the 
hands of the producer and his immediate vendee. 
All property shall be taxed according to its value, 
that value to be ascertained in such manner as 
the Legislature shall direct, so that taxes shall be 
equal and uniform throughout the State. No one 



588 JACKSON : 



Memphis 7>. Memphis City Bank. 



species of property from which a tax may be col- 
lected shall be taxed Higher than any other species 
of property of the same value." Const. 1870, Art. 
II., Sec. 28. 

Unlike the revenue clause of the Constitution of 
1834, the requirement here is positive and impera- 
tive that all property, except that mentioned for 
exemption, shall be taxed. This provision compre- 
hends the whole domain of taxation ; and, in ex- 
plicit terms, prescribes the maximum of exemptions, 
beyond which the Legislature may not go. It 
declares what property may be and what shall be 
excepted from taxation, and directs that all the rest 
shall be taxed. By that mandatory direction the 
Legislature is prohibited from making any other 
exemptions from taxation upon any ground or con- 
sideration whatever; "and if it attempt to do so, 
the effort is unavailing and void for want of leg- 
islative power." Railicay Co, v. Wilson County^ 5 
Pickle, 608; M, ^ C. R, R, Co, v. Gaines, 3 Tenn. 
Ch., 611; Ellis v. L, ^ N, R, R Co,, 8 Bax., 530; 
Chattanooga v. Railroad Co,, 7 Lea, 576; 8 Heis., 
789 and 796; 12 Lea, 547. 

Such an immunity as that claimed by the de- 
fendants in this case not being embraced in that 
exception, and being within the prohibition, the 
Legislature has no power to grant it, either by 
original or amendatory enactment, however general 
in form and operation. 

It has already been seen, upon abundant citation 
of authority, that capital stock and shares of stock 



APRIL TERM, 1892. 589 

Memphis v. Memphis City B^nk. 

are property. They fall clearly within the consti- 
tutional requirement that all property shall be taxed. 
Hence, there is no legislative power to exempt 
them. As especially in point, we refer to Bank of 
Shreveport v. Board of Assessments, 141 La. Ann., 
188. 

Under the eighth section of Art. XI. of the 
present Constitution, the Legislature may, by gen- 
eral laws, provide for the organization of new cor- 
porations, and for the increase or diminution of 
the powers of old ones ; but that is the limit. It 
cannot go further, and grant immunity from taxa- 
tion, for that is forbidden by Sec. 28, Art. IL, of 
the same instrument. 

This construction gives full force to both pro- 
visions in letter and in spirit, and makes them 
perfectly harmonious; while a contrary construction 
would produce irreconcilable conflict, and, in reality, 
override and set at naught the latter provision by 
the former one. Such a result is forbidden by 
every sound rule of interpretation, and will not be 
sanctioned for a moment. 

Again, it' is competent for the Legislature, by 
general laws, to increase the powers of existing 
corporations, but that does not mean that it may 
grant immunity from taxation. An increase of 
powers does not include a grant of immunity from 
taxation. The word "powers" has not so wide a 
range, it is not so comprehensive in its scope, as 
the other words of the same section, " rights and 
privileges ; " yet, these latter words do not em- 



690 JACKSOX : 



Memphis ?'. Memphis City fiank. 



brace immunity from taxation. Memphis v. Phccnix 
Fire and Marine Insurance Co.^ ante^ p. 566; E. 
7\y Va. ^ Ga, B. R, Co. v. Hamblen County, MS., 
Knoxville, 1877; M. ^ C. R. R. Co. v. Gaines, 
MS., Nashville, 1878; Wilson v. Gaines, 9 Bax., 
546;. Railroad Company v. County of Hamblen, 102 
U. S., 273; Wilson v. Gaines, 103 U. S., 417; 
Railroad Companies v. Gaines, 97 U. S., 697; 
Morgan v. Louisiana, 93 U. S., 217; Picard v. E. 
T., Va. cj- Ga. R. R. Co., 130 U. S., 642. 

This, to our minds, is demonstration that the 
Legislature, since the adoption of the Constitution 
of 1870, has no power to grant or enlarge an im- 
munity from taxation to any private corporation, 
evea by general law, whether creative or amenda- 
tory. Then, may it preserve such an immunity to 
corporations created before that date, when, by sub- 
. sequent legislative sanction, they divert their capi- 
tal into channels not authorized by their original 
charters? Manifestly not. The lack of power to 
preserve the immunity for the new enterprise fol- 
lows from the lack of power to grant it in the 
first instance. To preserve the immunity of an 
existing corporatioa in so radical a change as from 
an insurance to a banking business, the same 
measure of legislative power is requisite as in 
granting originally a similar immunity to independ- 
ent incorporators desiring to enter upon a banking 
business upon subscriptions of money contributed 
for that purpose. 

The only ground upon which immunity from 



APRIL TERM, 1892. 591 

Memphis v. Memphis City Bank. 

taxation can now be preserved to any corporation 
in this State, is that the charter granting it, when 
it was lawful so to do, is a contract whose obli- 
gation can no more be violated by constitutional 
amendment than b}^ subsequent legislation. 

Aside from the grant of corporate franchise, the 
legal import of the State's contract in the charter 
before us was that the grantee^ the Memphis City 
Fire and General Insurance Company, should bfe 
protected against all taxation, except that expressly 
named, so long as it should employ its capital and 
its energies in the business of insurance, but no 
longer. There was no contract for immunity from 
taxation in any other business. The charter does 
not authorize the grantee to abandon the busjness 
of insurance and employ its capital in that of 
banking, as complainant alleges, and defendants by 
their demurrer admit, has been done. The State 
made no contract authorizing such a change, unless 
it did so by the Act of 1887. No authority for 
it is found in the original charter. 

To justify a claim of immunity from taxation 
as a banking institution, it is indispensable, there- 
fore, that a valid change in the original contract 
be. shown to have been made ; and in that change 
the State must have agreed expressly to two dis- 
tinct propositions — (1) that the corporation might 
thereafter do a banking business, and (2) that in 
the latter business the corporation should have the 
same immunity enjoyed in the former. Merri'phis v. 
Phoenix Fire and Marine Insurance Company^ ante] 
p. 566, and authorities cited. 



592 JACKSON: 



Memphis </. Memphis City Bank. 



To the second proposition the State has been 
powerless to. yield assent since May 5, 1870, when 
the present Constitution was adopted. The Legis- 
lature, which alone could act for the State in such 
a matter, might have agreed, by general law, to 
the change of business, but it could not preserve 
the immunity. 

It is competent for the Legislature to increase 
the powers of existing corporations by general laws, 
but it cannot preserve to them immunity from 
taxation, if, in availing themselves of their new 
powers, they divert their capital into new enter- 
prises. It can no more preserve the immunity 
through such a change than it can extend the life 
of an expiring charter, and thereby preserve the 
immunity through another term. Either would be 
tantamount to granting an exemption originally. 
Hence both are forbidden. 

The most that can properly be said in favor of 
corporations having immunity from taxation, when 
the Constitution of 1870 was adopted, is, that, so 
long as they pursue the business then authorized 
by their charters, they are entitled to the full 
benefit of that immunity, but if they embark their 
capital in any business not legitimately within the 
scope of their charters at that date, whether the 
diversion be with or without legislative sanction, 
it thereby becomes, while so employed, subject to 
taxation as other property of the same species. 

Additionally, it is insisted for complainant that 
the Act of 1887 (Ch. 190), relied on by defendants, 



APRIL TERM, 1892. 593 



Memphis v. Memphis City Bank. 



can avail them nothing; that the, whole Act is 
void, because the subject of the bill was not ex- 
pressed in the title, as required by Sec. 17, Art. 
IL, of the Constitution. 

We express no . opinion on this question, as its 
decision is not necessary in this case. 

It is contended for defendants that they are en- 
titled to the immunity here claimed without refer- 
ence to the Act of 1887. The proposition is that 
the Memphis City Fire and General Insurance 
Company was, by the twelfth section of its original 
charter, given the right and power to do a general 
banking business, and that no grant of additional 
powers was necessary to authorize the corporation 
to do such a business. That section, in full, is 
as follows: 

"J56 it further enacted^ That the said corporation 
shall be capable in law of purchasing, holding, 
and conveying any and all kinds of estate, real, 
personal, or mixed, and of receiving in trust from 
any person, money, jewels, plate, or other valuable 
thing, and of giving their acknowledgment there- 
for in such form as the directory of said corpora- 
tion may deem best suited to the protection and 
convenience of the depositor and the company ; 
and the said corporation shall hereby be author- 
ized to loan their surplus funds on any public 
stocks of any incorporated company, or of the 
United States, or either of them, or to invest 
them in any real or personal estate or choses in 
action or other good securities." 

38— 7 p 



594 J ACKSOX : 



Memphis v. Memphis City Bank. 



Obviously, this language was not used with a 
view of authorizing the grantee to enter upon a 
general banking business. The only power named 
which is not strictly within the scope of a suc- 
cessful insurance business, is that of receiving 
money and other valuable things in trust; and 
that power, as expressed, might as well have been 
conferred upon an insurance company as upon a 
bank. Certain it is that no authority is given to 
lend the money deposited, or to employ the capi- 
tal stock of the corporation in a banking busi- 
ness. This authority is attempted to be conferred 
by the Act of 1887 alone; yet a general bank- 
ing institution without such powers is an un- 
heard-of thing. 

That only an insurance business was contem- 
plated by the original charter is shown conclu- 
sively by the corporate name* and the language of 
the fifteenth section of the charter. That section 
is as follows: 

" Be it further enacted, That the president, or 
in his absence the vice-president, with the cash- 
ier, shall have full power and authority to make 
any assurance upon any fire, marine, or river risks, 
or risks upon any freights, moneys, goods, wares, 
merchandise, or other valuable thing, or upon live- 
stock, life, or health, and to fix the premiums 
therefor, and generally' to do all things necessary and 
proper in carrying on the general insurance business; 
and all policies by them issued, when signed by 
the president or vice-president, as the case may be, 



APRIL TERM, 1892. 



595 



Memphis v, Memphis City Bank. 



and countersigned by the cashier, with the seal of 
the company attached, shall be binding upon the 
corporation to the same extent a like contract can 
bind a natural person." 
Reverse and remand. 



596 JACKSON : 



Nelson v. Haywood County. 



Nelson c. Haywood County. 
{Jackson. July 7, 1892.) 

1. Constitutional Law. Passage of statutes. Presumption of regularity. 

The Courts indulge every fair and reasonable presumption in favor of 
the regular and valid passage of statutes. This rule finds application 
in the construction of journal entries, and in aiding their defects or 
supplying their omission. This rule is subject to the limitation that 
no presumption will be indulged which necessarily contradicts the 
affirmative showing of the journals. { Post y pp. doj, 604.) 

Cases cited and approved: Brewer?'. Huntingdon, 86Tenn., 732; State 
V. Algood, 87 Tenn., 163; Williams 7'. Slate, 6 Lea, 549; State 7'. 
McConnell, 3 Lea, 332. 

2. Same. Same. Description of Act in Journal entries. 

It is not essential to the validity of a statute that it should be described 
in the journal entries recording its passage by setting out its title in 
ipsissimis verbis. Discrepancies between such journal entries and the 
title of Act are treated as mere abbreviations or omissions, which are 
supplied by presumption or disregarded as immaterial. (Post^ pp, 
604-^06.) 

Constitution construed: Art. H., Sees. 17, 18, 21 (1834). 

Case cited and approved: 143 U. S., 649. 

3. Same. Same. Same. 

A discrepancy between the Act as passed and the journal entries re- 
cording its passage, as to the number of sections contained in the 
Act, does not affect its validity. This is not a material matter, but, 
iir it were, the Act and not the recital of the journal entries would be 
conclusively presumed to speak the truth. {Post, pp. 606, 607.) 

Constitution construed: *Art. H., Sees. 17, 18, 21 (1834). 

4. Same. Same. Construction of report of conference committee. 

A bill having been passed regularly by both houses was referred, upon 
a difference between the two houses as to certain proposed amend- 



APRIL TERM, 1892. 597 



Nelson v. Haywood County. 



ments, to a joint committee of conference. This committee reported 
as follows: **Your committee of conference, to whom was referred 
Senate Bill No. lo, with House amendments, beg leave to report the 
accompanying bill in lieu of said bill and amendments, in which is 
embraced substantially all the provisions of both houses. Your com- 
mittee deem it prudent to propose a bill in lieu, as the original bill has 
been much disfigured by amendments, interlineations, and erasures. 
Your committee ask that the bill offered be accepted and passed." 
This redrafted bill of the committee of conference contained fewer 
sections and omitted some of the proposed amendments — the com- 
mittee substituting compromise provisions therefor. The committee's 
report was concurred in by the houses, and the bill signed. The bill 
was not passed after its redrafting by the committee. 

Held: The Act was constitutionally passed, and is a valid law. The 
committee did not report a new bill. They had authority to make 
such changes as would reconcile differences between the two houses. 
It was not necessary that the bill should be passed upon three read- 
ings after the committee's report. {Post^ pp, 6o2y 6ojf 6oy-6o^, and 
611-612.) 

Same. Same. IVken statute takes effect. 

When a bill is signed by the Speakers of the two houses, it then takes 
effect by relation as of date of its passage. It is not required that a 
bill shall be enrolled before its signing, and therefore the recilal of 
the date of its enrollment on the journals affords no evidence that the 
bill had not been signed at that dale. (Posty pp. 6og-6ii.) 

Constitution construed: Art. 11., Sees. 17, 18, 21 (1834). 

Case cited and approved: Dyer v. State, Meigs, 237. 



FROM HAYWOOD. 



Appeal in error from Circuit Court of Haywood 
County. W. II. Swiggart, J. 

J. R. Flippin, W. W. Rutledge, and Turlby & 
Wright for Nelson. 



598 JACKSON : 



Nelson ?'. Haywood County. 



J. W. E. Moore, A. D. Bright, and Metcalf & 
Walker for Haywood County. 

L. Lehman, Sp. J. This cause, which was com- 
menced by a petition for a mandamus to require 
the Justices of the County Cpurt of Haywood 
County to levy a tax to pay coupons upon bonds 
issued under the provisions of Chapter 55 of the 
Acts of the General Assembly of 1869-70, was 
before this Court on a former appeal of the relator 
from the action of the Circuit Court of Haywood 
County, in sustaining various assignments of de- 
murrer to and dismissing the petition. 

This Court at the April Term, 1889, reversed 
such action of the Circuit Court, overruled the 
demurrer, and remanded the cause for further pro- 
ceedings. 

The opinion of the Court on that appeal is re- 
ported in 3 Pickle, 781, and recites so fully the 
allegations of the petition for mandamus^ and the 
grounds of demurrer interposed in limine^ that 
it would be mere repetition to state them now, 
and we content ourselves by referring to that 
opinion for such allegations and assignments of 
demurrer. 

When the cause was resumed in the Circuit 
Court the respondents answered, and among other 
things in their answer, as far as it is necessary to 
consider the defenses made therebv, because of 
what was settled by the former decision of this 
Court, set up that the Act of 1869-70, Ch. 55, 



APRIL TERM, 1892. 599 



Nelson v. Haywood County. 



was not legally or constitutionally passed by the 
General Assembly. 

As appears from the bill of exceptions taken by 
the relator, the Circuit Court on this ground denied 
the peremptory writ of mandamus and dismissed 
the petition, and the cause iff here again on the 
appeal of the relator. 

The sole assignment of error to be considered 
on the present appeal involves the inquiry whether, 
the Act of the Legislature under which the bonds, 
of some of which the coupons in cjuestion represent 
the interest for certain periods of time, was passed 
by the Legislature in conformity to constitutional 
requirements. 

That Act was passed, or purported to have been 
passed, on February 8, 1870, at which time our 
Constitution of 1834 was in force, and under the 
provisions of which its validity must therefore be 
tested. 

The parts of the Constitution of 1834, as far as 
applicable to the objections made to said Act, were 
contained in Sections 17, 18, and 21 of Article II. 
thereof, which ^re as follows: 

" Sec 17. Bills may originate in either house, but 
may be amended, altered, or rejected by the other. 

"Sec 18. Every bill shall be read once on three 
different days, and be passed each time in the 
house where it originated, before transmission to 
the other. No bill shall become a law until it 
shall be read and passed on three days in each 
house, and be signed by the respective Speakers. 



600 JACKSON : 



Nelson i: Haywood County. 



"Sec. 21. Each house shall keep a journal of 
its proceedings, and publish it, except such parts 
as the welfare of the State may require to be 
kept secret." 

Chapter 55 of the Acts of 1869-70, as published 
among the Acts of that session, is entitled "An 
Act to confer upon the town of Brownsville, in 
the county of Haywood, the authority to issue 
corporation bonds in aid of railroads, and for other 
purposes," and, as published, consists of twenty-two 
sections, is signed by the Speaker of each house, 
and is recited to have been "passed February 8, 
1870." The Act appears to have originated in 
what was styled " Senate Bill No. 10," concerning 
which entries are contained in the Senate aud 
House Journals as follows: 

"Senate Bill Xo. 10, To confer upon the town 
of Brownsville authority to issue corporation bonds. 
Passed first reading, and was referred to the Com- 
mittee on Internal Improvements." October 8, 
1869, Senate Journal, p. 21. 

On Thursday, October 28, 1869, the Committee 
on Internal Improvements reported, recommending 
the passage of the bill. Senate Journal, * p. 81. 

On the same day the bill passed its second 
reading, and is then styled, "Senate Bill No. 10, 
To confer upon the town of Brownsville authority 
to issue corporation bonds in aid of railroads." 
Senate Journal, p. 85. 

On November 1, 1869, Senate Bill No. 10, then 
styled, "To confer authority upon the town of 



APRIL TERM, 1892. 601 



Nelson ?'. Haywood County. 



Brownsville to issue bonds," passed third reading. 
Senate Journal, p. 89. 

On [N'ovember 10, 1869, Senate Bill No. 10 
passed first reading in the House. House Journal, 
p. 181. 

On January 28, 1870, Senate Bill No. 10 "was 
taken up and passed .its second reading, and made 
the special order for 10:30 o'clock to-morrow." 
House Journal, p. 562. 

On January 29, 1870, Senate Bill No. 10 '^was 
taken up. Mr. Thomas offered the following 
amendments: In first section strike out 'semi-an- 
nually' and insert * annually,' and strike out 'six 
per cent.' and insert ' eight per cent.,' * * * 
which was adopted, and the bill, as amended, 
passed its third reading." House Journal, p. 565. 

In the Senate, January 31, 1870, a message was 
received from the House, returning Senate Bill No. 
10 amended and passed ; whereupon the amend- 
ments were read and referred to the Committee 
on Internal Improvements. Senate Journal, pp. 
346, 347. 

On February 1, 1870, the Committee on Inter- 
nal Improvements, to whom was referred amend- 
ments to Senate Bill No. 10, recommended '' a con- 
currence on the amendments of the House, which 
constitute the twenty-sixth section, and a non-con- 
currence in all of the other House amendments." 
Senate Journal, p. 351. 

On the same day, "House amendments to Senate 
Bill No. 10, To authorize the town of Brownsville 



602 JACKSON : 



Nelson ?'. Haywood County. 



to issue corporation bonds," were non-concurred in, 
except the amendment which constitutes the twenty- 
sixth section of the bill, which was concurred in. 
Senate Journal, pp. 352, 353. 

On February 1, 1870, a report was received in 
the House, from the Clerk of the Senate, as fol- 
lows: "I am directed to return Senate Bill No. 
10, 'To authorize the town of Brownsville to issue 
corporation bonds,' the House amendments non- 
concurred in, except the twenty-sixth section, as 
amended." House Journal, p. 590. 

On February 2, 1870, the House insisting upon 
its amendments, the Senate adhered to its non-con- 
currence, and asked for a committee of conference. 
Senate Journal, p. 373. 

On February 4, 1870, in the House, Senate Bill 
No. 10 was taken up, after notification that the 
Senate requested a committee of conference, and 
the House appointed a committee of conference 
on its part. House Journal, pp. 630, 631, and 
632. 

On Saturday, February 5, 1870, a report from 
the conference committee was received in the Sen- 
ate, as follows: "Your committee of conference, 
to whom was referred Senate Bill No. 10, with 
House amendments, beg leave to report the accom- 
panying bill in lieu of said bill and amendments, 
in which is embraced substantially all the provis- 
ions of both Houses. Your committee deem it 
prudent to propose a bill in lieu, as the original 
had been much disfigured by amendments, inter- 



APRIL TERM, 1892. 603 



Nelson 7'. Haywood County. 



lineations, and erasures. Your committee ask that 
the bill be accepted and passed." On motion, the 
report of tyie committee was concurred in, and it 
was ordered that the bill, with the report, be im- 
mediately transmitted to the House. Senate Jour- 
nal, p. 375. 

• On February 7, 1870, in the House, Senate Bill 
No. 10, with the report of the Committee of Con- 
ference, was taken up and the report concurred in. 
House Journal, pp. 645, 646. 

On February 18, 1870, the Committee on En- 
rolled Bills reported to the Senate that they "have 
examined Senate Bill No. 10, and find it correctly 
enrolled." Senate Journal, p. 416. 

On February 21, 1870, a message was received 
by the Senate from the House, returning Senate 
Bill No. 10, signed. Senate Journal, p. 424. 

The insistence of the defendants is, that the 
Act of February 8, 1870, was a new bill, different 
and distinct from Senate Bill No. 10, and, as such, 
was not read in each of the houses of the Gen- 
eral Assembly, as required by the Constitution. 
The construction placed on the constitutional pro- 
visions in relation to the steps to be taken by the 
Legislature in enacting bills, under the decisions 
of this Court, is to the effect that, while the jour- 
nals will be considered in determining the validity 
of an Act of the Legislature, every reasonable in- 
ference and presumption will be drawn and in- 
dulged in favor of the regularity of its passage, 
'' and where it did not affirmatively appear not to 



( 

1 



604 ' JACKSON: 



Nelson r.'. Haywood County. 



have passed^ and such legitimate construction could 
be given to the record as sustained the law, it 
would be done/' Brc/rer v. Mayor^ ete.^ Df Hunt' 
ingdoii^ 2 Pickle, 7-52. 

In State v. Afjjood, 3 Pick., 163, the rule is 
thus expressed: "AVe think the rule is well set- 
tled that where the journal does not affirmatively 
show the defeat of the bill, every reasonable in- 
ference and presumption will be indulged in favor 
of the regularity of the passage of an act subse- 
quently signed in open session by the Speakers." 
Williarm^ v. 8tatc^ 6 Lea, 549; State v. McConnell^ 
3 Lea, 328. 

Keeping this rule in view, we proceed to con- 
sider the grounds upon which the Act of Febru- 
ary 8, 1870, is assailed : 

Firf<f, — It is assumed that the title of the Act 
was different from that of Senate Bill No. 10, and 
that the title of the latter was never amended in 
the Senate or House. This idea is evolved from 
the fact that on the Journal of the Senate, Sen- 
ate Bill No. 10 appears to have been styled as a 
bill " To confer upon the town of Brownsville au- 
thority to issue corporation bonds," and the Act, 
as published, is entitled "An Act to confer upon 
the town of Brownsville, in the county of Hay- 
wood, the authority to issue corporation bonds in 
aid of railroads, and for other purposes." 

By reference to the Senate and House Journals, 
it will be seen that Senate Bill No. 10, before its 
commitment to the committee of conference, was 



APRIL TERM, 1892. 605 



Nelson v, Haywood County. 



also entered under the titles, " To confer upon the 
town of Brownsville authority to issue corporation 
bonds in aid of railroads," and "To confer author- 
ity upon the town of Brownsville to issue bonds." 

There was no such duty imposed on the General 
Assembly by the Constitution of 1834 as that of 
entering on the journals of both or either of the 
houses,, in ipsissimis verbis^ the title of every bill 
or Act they might adopt. 

In Meld v. Clarke 143 U. S., the Court said : 
"In regard to certain matters, the Constitution ex- 
pressly requires that they shall be entered ou the 
journal. * * * But it is clear that in respect 
to the particular mode in which or with what 
fullness shall be kept the proceedings of either 
house relating to matters not expressly required to 
be entered on the journals — whether bills, orders, 
resolutions, reports, and amendments shall be en- 
tered at large upon the journals, or only referred 
to and designated by their titles or by numbers — 
these and the like matters were left to the discre- 
tion of the respective houses of Congress." In 
the nature of things, legislative journals are fre- 
quently " constructed from loose memoranda, made 
in the pressure of business, and amid the distrac- 
tions of a numerous assembly." 

It would in many instances operate to defeat 
the will of the Legislature, as expressed in pub- 
lished approved statutes, if the passage of bills was 
made to depend on entire and exact agreement of 
the entries of the titles on the journals, with the 



606 JACKSON : 



Nelson v, Haywood County. 



titles as contained in the drafts thereof as intro- 
duced and subsequently signed by the Speakers. 

The title of Senate Bill No. 10, as found on 
the journals, may well be treated as an abbrevia- 
tion of the title thereof as prefixed to the pub- 
lished Act, or as a clerical omission of a part of 
the title from the journal. Such a conclusion is 
in harmony with the rule that every reasonable 
presumption will be indulged to support the regu- 
larity of the passage of laws, and is promotive of 
the policy that legislative acts should, if possible, 
be sustained. 

Second. — Objection is also offered to the validity 
of this Act of 1870, because Senate Bill No. 10 
. contained at least twenty-six sections, with the con- 
tention that this appears from the journals of the 
Senate and the House. On this averment the 
appellees base the conclusion that these were dis- 
tinct bills. Taking it for granted that Senate Bill 
No. 10, as it went into the hands of the com- 
mittee of conference, contained twenty-six sections, 
does it necessarily follow that it was distinct from 
what IS now the Act of 1869-70, Ch. 55? True 
it is that the latter has only twenty-two sections. 
The history of Senate Bill No. 10 is that the 
committee of conference drafted it. In doing so 
they might, without substantially changing it, have 
reduced it to twenty-two sections. 

We have examined the House and Senate Jour- 
nals of the Session of 1869-70j and have not been 
able to find therein any entry or allusion to any 



APRIL TERM, 1892. 607 



Nelson v. Haywood County. 



bill which relates to the subject-matter of that 
Act besides Senate Bill No. 10. 

It can further be said that the mere recital on 
the journal of, or reference to, the twenty-sixth 
section does not countervail the evidence found on 
the face of the Act of the actual existence of only 
twenty-two sections. Under the rule which is here 
applicable, the more potent and persuasive evidence 
is that which will support the Act. So that if 
this fact of twenty-six sections were vital, it would 
be adjudged, for the purposes of this case, not to 
exist. To hold that Senate Bill No. 10 and the 
Act are not in fact one, would be to reverse the 
presumption which is indulged, for salutary ends, 
to save statutes from becoming inoperative. 

Third. — The third proposition, on which it is 
contended that the Act of .February 8, 1870, is 
void, is the fact that Senate Bill No. 10, before it 
went to the House, had in its first section the 
• words "semi-annually," which was proposed to be 
amended in the House by inserting in lieu thereof 
"annually," and the words "six per cent.," for 
which in the House the words " eight per cent." 
were proposed to be substituted, and the Act, as 
presented, has no words of similar import, or of a 
kindred nature in its first section. 

This comment is made to prove that the Act 
was a new bill. The fact that when the bill was 
redrafted by the committee of conference, the 
different sections may have been transposed, did 
not make it a new bill so as to require three 



608 JACKSON : 



Nelson r. Haywood County. 



readings thereof, when it should be returned to 
the houses for further action, because it would be 
obviously immaterial that various parts thereof 
were moved, so to speak, from one to another 
place therein. 

In this connection the Act is criticised on ac- 
count of the failure of the committee of conference 
to insert in the bill the amendments proposed . in 
the House by the words " annually " * and '' eight 
per cent.," and the insertion by them on the sub- 
ject of interest "not exceeding the rate of interest 
at the place where said bonds are payable," with- 
out any reconsideration in either chamber by which 
Senate Bill No. 10 had been passed. 

The committee of conference, evidently by mut- 
ual concession, and upon proper deliberation, adjusted 
the differences which they had been commissioned 
to settle. 

There was no necessity, when the report was 
submitted to the Senate, for that body to recon- 
sider their former action, any more than it would 
liave been essential for them to do so if they had, 
in the first instance, concluded to acquiesce in the 
amendments proposed by the House. Senate Bill 
No. 10 had not been rejected in either house. It 
was first regularly passed in the Senate, then 
passed with amendments in the House, which 
amendments were non-concurred in, and then it 
was put into the hands of a committee of con- 
ference, who reported, and their report was ap- 
proved by both houses. Upon an examination of 



APRIL TERM, 1892. 609 



Nelson v, Haywood County. 



the journals of the two houses of the Legislature, 
it will be found to have been'* common practice to 
adopt bills upon the reports of committees of con- 
ference, appointed after amendments proposed by 
one of them and not approved by the other, by 
merely concurring in the report. Such has befen 
the practice of our Legislatures, and it would be 
unwise now to adopt a rule which might nullify 
many statutes which Imve been received by the 
people as the law of the land, and have become 
canons of property. But, assuming it to have been 
necessary for the Senate to have reconsidered the 
bill after it was returned by the committee of 
conference, it can be said there is no evidence 
that this was not done. The journals show no 
reconsideration; they are silent on the subject. 
Such silence will be treated as a case of omission. 
State V. Algood^ supra. 

Fourth, — It is further contended that the Act of 
February 8, 1870, is void, because the Act was 
passed on that day, and Senate Bill No. 10 was 
not signed by the Speaker of the Senate or House 
until on or after February 18, 1870. To maintain 
this proposition, it is argued that it appears the 
bill was not enrolled in the Senate until February 
21, 1870, at which date the House transmitted the 
bill to the Senate. For the support of this posi- 
tion, it is asserted that a bill is never signed by 
the Speaker until it is enrolled or engrossed. 

The Senate Journal does recite that on Febru- 
ary 18, 1870, the Committee on Enrolled Bills re- 

39— 7 p 



610 -TACKSOX : 



Nelson 7-. Haywood County. 



ported that they had " examined Senate Bill No. 
10, and found it correctly enrolled." This, how- 
ever, does not necessarily prove the date of the 
enrollment of the bill. It may, notwithstanding 
the fact that the committee then made the report, 
have been enrolled prior to that date. 

Furthermore, it may be true that a bill is not 
ordinarily signed until it has been enrolled, but 
we cannot conclude that it is never so signed, 
especially when to do so might be to presume 
against the validity of an act of assembly, instead 
of making all reasonable presumptions in its favor. 

The date of the signing of a bill was not, 
under the Constitution of 1834, evidence of the 
day on which it was passed. Bills must neces- 
sarily be passed before being signed. In Dyer v. 
The State, Meigs, 237, it was held, in regard to a 
statute enacted under the Constitution of 1834, 
that it took effect, not when it was signed, but 
by relation to a previous date when it was passed. 
Besides all this, the Constitution of 1834 did not 
forbid the Speakers from signing bills before their 
enrollment. The same reasoning may be applied 
to the entry on the Senate Journal of February 21, 
1870, concerning the message of the House return- 
ing Senate Bill No. 10, signed, with the further 
comment that the date of the message is not re- 
cited, nor is the date given when it was actually 
received in the Senate. 

It is further argued, that, because the journals 
fail to show the fact, the Act could not have 



APRIL, TERM, 189-2. 611 



Nelson v. Haywood County. 



passed February 8, 1870. The silence of the 
journals does not operate in this way. Their 
silence on the subject may have arisen from over- 
sight or accidental omission. 

Fifth. — The only remaining objection to this Act 
to be considered is that the committee of confer- 
ence reported a new bill, which was passed with- 
out the three readings required by the Constitution. 
The idea that the bill as it came from the hands 
of the committee of confereiice was a new bill, 
separate ^and distinct from Senate Bill No. 10, is 
sought to be supported by the report of the com- 
mittee. We do not think that, from the record, 
we are authorized to adjudge that the committee 
intended to report a new bill, or that they did so. 
The committee did say they deem it prudent to 
propose a bill in lieu. This language, standing 
alone, might ordinarily signify that the committee 
had devised a new bill. But the words are qual- 
ified by the statement that the accompanying bill 
"embraces substantially all the provisions of both 
houses." 

The reasonable conclusion which may be deduced 
from the report, is, that the committee simply re- 
drafted the bill; and they manifest this themselves 
by giving as their reason for having done so, the 
fact that the '* original bill had been much dis- 
figured by amendments, interlineations, and erasures." 

Doubtless the two houses had access to the 
original of Senate Bill No. 10 when they con- 
sidered the report of the committee, and it is not 



612 JACKSON: 



Nelson v, Haywood County. 



to be presumed that they would have omitted to 
make proper comparison for their guidance in 
regard to the action to be taken thereon, so as 
to enable them to decide whether the committee 
had reported a new bill. 

We will not presume that the Legislature were 
derelict in such an important particular. The Leg- 
islature is a co-ordinate department of the govern- 
ment with the judiciary, is invested with very 
high and responsible duties, and they act under 
the solemnity of an official oath which it is not 
to be supposed they will disregard. Cooley's Const. 
Lim., p. 217. 

After a full consideration of the objections made 
to this Act of the General Assembly, we have 
reached the conclusion that such objections are not 
well taken. 

The cause was tried below without a jury, and 
our duty is to render such judgment as ought to 
have been rendered in the Circuit Court. 

The judgment is reversed. Let the peremptory' 
writ of mandamus issue, as prayed for in the 
petition. 



DISSENTING OPINION. 

TuRNEY, Ch. J. The suit is to enforce the 
collection of bonds issued to Holly Springs and 
Ohio Railroad Company, under an Act claimed to 
have been passed in February, 1870. The bill 



* ' 



APRIL TERM, 1892. 613 



Nelson v. Haywood County. 



was introduced in the Senate on October 8, 1869, 
where it passed the three readings; went to" the 
House, passed first reading; was amended, and 
passed second reading; again amended, and passed 
third reading. House amendments were referred 
to Committee on Internal Improvements, which 
recommended concurrence in the amendments of 
the House as to the twenty-sixth section, and non- 
concurrence as to the others. 

Senate non-concurred except as to the twenty- 
sixth section. House refused to recede from its 
amendments. Senate adhered to its non-concur- 
rence, and asked for a committee of conference. 
Both Houses appointed its members of said com- 
mittee. 

The conference committee reported to the Senate 
a "bill in lieu," and asked that it be adopted. The 
report is as follows: "Mr. Speaker — Your com- 
mittee of conference, to whom was referred Senate 
Bill No. 10, with House amendments, beg leave to 
report the accompanying bill in lieu of said bill 
and amendments, in which is embraced substantially 
all the provisions of both houses. Your committee 
deem it prudent to propose a bill in lieu, as the 
original bill has been much disfigured by amend- 
ments, interlineations, and erasures. Your com- 
mittee ask that the bill oft'ered be accepted and 
passed. All of which is respectfully submitted." 

The report was concurred in by the Senate on 
the fifth of February, 1870— the date of the re- 
. port — and by the House on the seventh. 



614 . JA(5KS0N: 



Nelson 7'. Haywood County. 



The Constitution is : " Bills may originate in 
either house, but may be amended, altered, or 
rejected by the other." Without repeating the 
history of the bill, we have seen that this bill 
did not originate in either house, but in the com- 
mittee of conference from' both houses, for which 
there is no constitutional authority, but, on the 
contrary, a direct prohibition, under the facts here. 
The word "may," as employed in the clause of 
the Constitution quoted, means "shall," and ex- 
cludes all idea of the origination of a bill else- 
where than in the one or the other house; and a 
conference committee, composed of members from 
each house, is not contemplated in the term "either 
house." 

The committee reported "a bill in lieu," and 
so define it us often as twice, aiid, I might say, 
three times in their short report. It was oftered, 
as the title given it by the committee imports, in 
place of and as a substitute for the opginal bill 
and amendments. 

However we look at the language of the report, 
it conveys no other idea than the oftering of a 
new bill. 

The language, "in which is embraced substan- 
tially all the provisions of both houses," is a con- 
clusion which the committee had no authority to 
suggest. That was the province of the two 
houses. 

The new bill did not pass the three readings 
in each house, but w^as simply concurred in by 



APRIL TERM, 1892. 615 

Nelson 7'. Haywood County. 



each house — by the Senate on the iiftli and by 
the House on the seventh of February. 

The provisions of the Constitution are intended 
to protect the people of the State against hasty 
and ignorant legislation, and ought to be strictly 
construed. All rules made by the Legislature 
governing its proceedings must conform to the 
Constitution, of which it is a creature. 

Rules not in strict conformity to the Constitu- 
tion are not valid, and all laws passed under them 
are void. 

In this matter we are construing our Constitu- 
tion, and authorities from other States are of little 
value except for their reasoning; and in weighing 
reasons we must have an eye to the public policy 
that may induce it. The parliamentary rules of 
Congress can be of little service, as there is no 
such provision in the Constitution of the United 
States. 

Whatever may be the holdings of other States 
with similar constitutional provisions, we must in- 
terpret our language for ourselves, and assume that 
the framers of the Constitution meant what they 
said, and used the words of that instrument in 
the sense of their common acceptation and mean- 
ing. There being no law authorizing their issu- 
ance, the bonds are nullities, and no obligation 
rests on the county for their payment. 

For these reasons I do not concur with the 
majority. 



616 JACKSON : 



Nelson r. Haywood County. 



Caldwell, J. I think it affirmatively appears 
from the journal that the bill reported by the 
conference committee was a new bill, and that, as 
such, it did not pass three readings; and, hence, 
that the Act was not constitutionally passed, and 
is void. 



APRIL TERM, 1892. 617 



H. Clay King v. State. 



*1I. Clay King r. State. 
{Jackson. July 7, 1892.) 

1. Change of Venue. Refusal of ^ not reviewable^ when. 

Discretion of trial Judge refusing change of venue in a criminal case 
will not be reviewed on appeal except in a clear case of abuse. This 
is not a case for review of that discretion. {Post^ p. 622.) 

Cases cited and approved: Porter v. State, 3 Lea, 496; Holcomb v. 
State, 8 Lea, 417; Poe v. State, 10 Lea, 673. 

2. Continuance. Refusal of for undue excitement not erroneous^ when. 

Continuance of criminal case for "too great excitement, to the preju- 
dice of defendant,"' rests in the sound discretion of the Court. Re- 
fusal of second continuance upon that ground and others, is not erro- 
neous in this case. ( Post^ pp. 622^ ^^J-) 

Code construed: ^6038 (M. & V.). 

3. Jury. Dis^uahyyin^ opinion as ground for new trial. 

After verdict a strong presumption obtains, even in a criminal case, in 
favor of the competency of a juror who was selected and sat upon 
the trial; and a clear case must l)e proved against such juror to jus- 
tify the granting of a new trial upon the ground that he had formed 
or expressed an opinion about the case before he was selected. {Post^ 
pp. 623, 624.) 

Case cited and approved : Mann v. State, 3 Head, 377. 

4. Same. Same. 

And the accused juror is a competent witness upon the trial of such 
issue. His denial, supported by proof of his good character or by 
corroborating circumstances, may be sufficient to rebut the evidence 
of one or more attacking witnesses. [Postj pp. 623^ 624.) 

Cases cited and approved: Rader?'. State, 5 1-ea, 610; Johnson 7a State, 
II Lea, 47; Mann v. State, 3 Head, 373. 



<* King's senience of death was commuted by Governor Buchanan to life imprison- 
ment. — Rbpokter. 



618 JACKSON : 



H. Clay King 7'. State. 



5. Same. Separation of. General rules. 

Separation of \yxxy prima fcuU vitiates their verdict. The separation 
may, however, be explained. The burden is upon the Slate to ex- 
plain it. An explanation is sufficient that covers all that occurred 
during the separation, and shows clearly either that there was no 
communication with the jury during the separation or that such com- 
munication as was had was not of a prejudicial character. {Post ^ pp. 
624-627.) 

Cases cited and approved: Stone v. State, 4 Hum., 27; Hiues v. Slate, 
8 Hum., 601 ; Riley v. State, 9 Hum., 646; Rowe v. State, 1 1 Hum., 
492. 



6. Same. Same. Passing across State line. 

The passing of the jury across the State line is not, of itself, a separa- 
tion, but, treating it as such, if the jury remained in strict charge of 
their oflicers, and had no communication with any one, their verdict 
is not thereby vitiated. { Post ^ pp. 626-628.) 



7. Same. Same. Same. 

Although the jury and its officers may have passed outside the State 
and beyond the local jurisdiction, the Court has the power to pun- 
ish them for misbehavior on their part occurring outside the State. 
{Post, pp. 627, 628.) 

Case cited and approved : McCarthy v. State, 89 Tenn., 543. 

8. Same. Exposure 0/ jury to contact with and remarks by bystanders. 

The verdict of the jury is not vitiated — there being no misconduct on 
their part or on the part of their officers — by such unavoidable or nec- 
essary contact with by-standers as occurs ordinarily during trials, nor 
by any remarks made in their presence by by-standers. {Post, pp. 
628^ 62().) 

Cases cited and approved : Brake v. State, 4 Bax., 361 ; Turner v. State, 
89 Tenn., 548. 

9. Same. Use of intoxicating liquors. 

Jury's use of intoxicating liquors does not vitiate their verdict when it 
appears there was no excessive indulgence. {Post, pp. 62^, ^30.) 

Cases cited and approved; Stone v. State, 4 Hum., 26; Rowe v. State, 
II Hum., 491. 



APRIL TERM, 1892. 619 



H. Clay King v. Slate. 



10. Same. Communication betiveen jurors and outsiders. 

All communications, whether by letter or oral, between jurors and out- 
siders, without leave and supervision of the presiding Judge, are im- 
proper. The practice of allowing such communications upon per- 
mission of the officer alone is disapproved. The burden is upon the 
State to explain such communications. This explanation may be by 
direct evidence or by the circumstances attending the communication, 
or by both. All communications shown in this case are sufficiently 
e X plained . ( Post^ pp. 6j/~6j8. ) 

Cases cited and approved: Urake v. State, 4 JBax., 361 ; Luster v. State, 
II Hum., 169. 

11. Evidence. Cross-t-xaminatioti of defendant in murder rase. 

In a murder case, the defendant having testified in his own behalf to 
his own peaceable character, may be required to answer, on cross- 
examination, as to his former violent conduct and breaches' of the 
peace toward persons other than the deceased. [Posty p. 6j8.) 

12. Same. Same. 

So, likewise, the defendant, having volunteered to prove for himself an 
honorable military career and record, may be interrogated, on cross- 
examination, as to particular incidents in that career. {Posl^ p. 6j8.) 

13. Same. Proof of motii'e and malice. 

King killed Poston. State's theory, assassination ; King's theory, self- 
defense. King claimed that in a certain litigation between himself 
and Mrs. Pillow, Poston, as the latter's attorney, had in a certain 
pleading used language derogatory to the character of Mrs. King; 
that he, as a loyal and loving husband, sought Poston, and demanded 
retraction, and that an altercation ensued, in which he killed Poston 
in self-defense. King put portions of the record in the King-Pillow 
litigation in evidence. Tlie State undertook to show that the refer- 
ence in the pleadings to Mrs. King was not derogatory to her but to 
defendant ; that King had abandoned his wife, and had long sought 
to divorce her, in order to marry Mrs. Pillow; that he had conveyed 
all his property to the latter, his suit being an eflfort to recover it; 
and that revenge and the desire lo rid himself of a formidable ad- 
versary in the litigation, prompted him to kill Poston. The Court 
admitted in evidence the portions of the record not offered by de- 
fendant, the deeds made by King lo Mrs. Pillow, and proof of the 
relations, social and otherwise, of King and Mrs. Pillow, 

Held: This evidence was admissible for the purpose of showing motive, 
and to contradict defendant, and as part of a record the other portion 
of which defendant had introduced. {Post, pp. 6J8-642.) 



620 JACKSON : 



H. Clay King v. State. 



14. Argument of Counsel. Allusions by Atlamey-general (o other cases. 

Exception, 

Mere allusions by the Attorney-general, in his closing argument, to 
other cases tried in the same Court and affirmed upon appeal, by way 
of illustration, afibrd no ground for a new trial where no exception 
to the argument was taken at the time it was made. {Posty pp, 642- 
644,) 

Cases cited and approved : North ington i\ State, 14 Lea, 424 ; Staples ?'. 
State, 89 Tenn., 231 : Swayne v. State (oral opinion), Jackson, 1890. 

15. Same. Requests to charge concerning. 

It is not error for the Court to refuse to give requests touching alleged 
improper argument by the attorney-general, where they are so framed 
as to be a sweeping criticism of the argument, pointing out nc spe- 
cific objections to it, or where they are not justified by the record, or 
where good and bad propositions are indiscriminately intermingled. 
{Post, pp. 644, 64s.) ' 

16. New Trial. A^ot granted for ttewly-discaifcred evidence y when . 

New trial will not be granted in a capital case on account of newly-dis- 
covered evidence in support of the plea of insanity, the evidence 
being merely cumulative, and no diligence to obtain it on the first 
trial being shown, and its character such that the result would not be 
thereby changed. {Post y p. 64^.) 

17. Charge ok Coi'RT. As to premeditation. 

The Court's charge as to premeditation is quoted and approved. (Post, 
pp. 64s, 646.) 

18. Same. As to insanity. 

The Court's general charge as to insanity is approved, though not quoted, 
as being in accord with the leading case of Stewart v. State, i Bax., 
178. {Posty pp, 646, 647.) 

19. I N s A N 1 TY . Burden of proof. 

Upon plea of insanity in criminal case, the defendant being presumed 
sane, the burden is upon him, in the first instance, to prove insanity. 
The proof of insanity may, however, occur in the State's evidence. 
That proof of insanity is sufficient which raises a reasonable doubt 
upon that point. (Post y pp. 647, 648.) 

Cases cited and approved: Stewart «'. State, i Bax., 178; Dove v. State, 
3 Heis., 370. 



APRIL TERM, 1892. 621 



H. Clay King ?'. State. 



20. Arrest of Judgment. Mtisi rest upon matter of record. 

Motion in arrest of judgment must be based upon matter of record, and 
not upon any matter dehors the record. A fortiori^ it cannot be main- 
tained upon affidavits contradictory of the record. {Post^ pp. 64S- 
6jo.) 

Cases cited and approved : State 7; Allison, 3 Yer., 428; State 7'. Rogers, 
6 Bax., 563. 

21. Dying Declarations. fVritteft. 

When dying declaration, otherwise admissible, is reduced to writing, 
and signed by the declarant, that being the only declaration made, 
the writing is admissible in evidence. {Post, pp. 64g, ^jo.) 

22. Verdict. Approved upon the facts. 

The Court approves the jury's verdict based upon the -State's theory of 
assassination. ^^Posty pp. 6^i~6^j.) 



FROM SHELBY. 



Appeal from Criminal Court of Shelby County. 

J. J. DUBOSE, J. 

C. B. Miller, W. G. Weatubrford, James M. 
Grekr, Lee Thornton, and T. W". & R. G. Brown 
for H. Clay King. 

Attorney-general Pickle, Geo. B. Peters, District 
Attorney-general; Turley & Wright, and Gantt & 
Patterson for State. 

LuRTON, J. This is an appeal from a convic- 
tion of murder in the first degree. The transcript 



1 

\ 



622 JACKSOK : 



H, Clay King v. State. 



consists of two thousand five hundred pages of 
printed matter. It will, therefore, be impossible, 
within the compass of a legal opinion, to present 
any thing like an analysis of this vast mass of 
evidence. All that we can hope to do is to state 
the errors which have been assigned by counsel, 
and briefly state our conclusion upon them. 

First. — The application of the defendant for a 
change of venue was refused, and this is assigned 
as error. Such an application is addressed to the 
sound discretion of the trial Judge, and this dis- 
cretion will* not be reviewed, unless a strong case 
is made out, showing an abuse of that discretion. 
Porter v. State, 3 Lea, 476; Holcomb v. State, 8 
Lea, 417; Poe v. State, 10 Lea, 673. 

We have carefully examined the evidence heard 
by His Honor, bearing upon this application, and 
we are unable to discover any abuse of his power. 
This is made the more evident from the fact that 
a jury was obtained without the exhaustion of the 
peremptory challenges allowed the defendant, and 
without the exhibition of any popular excitement. 

Second. — The second application for continuance 
was properly disallowed. The indictment was 
found during the January term, 1891, of the Court. 
After arraignment and plea, the case was set for 
trial for April 6, 1891 — a day of the same term. 
At this date, an application for change of venue 
was overruled, and the case again set for April 
13. At that date the case was continued, upon 
application of the defendant, to the next term, 



APRIL TERM, 1892. 623 



H. Clay King v. State. 



upon the ground 6f " undue excitement and preju- 
dice," and for other causes; and, upon motion of 
the defendant, set for trial for the first Monday 
in June, 1891. On this date, the application for 
change of venue was renewed, and overruled, and 
then the defendant applied for a second continu- 
ance, upon the ground of the prejudice which he 
averred still existed against him in Shelby County. 

Since the Act of 1875, §6088 Code of Milliken 
and Vertrees, a continuance because of too great 
excitement rests in the sound discretion of the 
Court. The Court had, when this application for 
continuance was made, already granted one contin- 
uance, and we see no error in his refusal of a 
second. 

Third. — It is next assigned as error that Juror 
Smith had, previous to the trial, formed and ex- 
pressed an opinion adverse to the defendant. On 
the original examination of this juror, he admitted 
that he had read the newspaper accounts of the 
killing of Poston, and that he had talked about 
the case with several parties. He said, however, 
that he had formed no opinion, and that he could 
render a verdict upon the law and evidence pre- 
sented. 

**From the fact that the juror was selected, he 
must be presumed to be competent. To overthrow 
this, a clear case must be made out against him." 
Mann v. State^ 3 Head, 377. v 

The witness, White, by whom it was sought to 
show that the juror had expressed an opinion ad- 



624 JACKSON : 



H. Clay King v. State, 



verse to the defendant, shows . himself to have been 
a partisan of the defendant. His memory as to 
the conversation with Smith was not clear. He 
had heard a large number of persons express 
opinions adverse to the defendant, and it is by no 
means clear that he had not confused, wha